R v Porter

LORD JUSTICE MOSES: 1.  This case concerns a truly terrible tragedy to the three and three-quarter year old son, Kian, of Mr and Mrs Williams.  They have sat with patience and dignity throughout these proceedings.  No one can put into words the extent of their tragedy or fully express adequate sympathy for their loss.  Certainly to have sat through the trial and then this appeal can have done nothing to alleviate, and may well have aggravated, their sorrow. 2.  Kian attended Hillgrove School, Bangor, in North Wales.  This is a private school for children from the age of 3-16.  The appellant, Mr Porter, was the headmaster.  He had taken over the school in 1975 and had, so the evidence showed, run the school far more successfully than had been achieved before.  It is not a purpose-built building.  It was on a “rugged school site”.  There were two playgrounds which were on different levels.  The lower playground was set in a disused quarry.  Access from one playground to another was primarily by a set of brick steps.  Each step had a width of 109cm, a depth of 43cm and a rising of 18.5cm.  They led onto a hard concrete surface. 3.  During a morning break on 7 July 2004 a number of children were in both playgrounds.  There were ten from the kindergarten (which included Kian), 31 from the infants and 18 from the juniors on the playground below.  There was but one teacher on duty on the upper playground.  At the time of the accident to which we shall come, she was, unfortunately, absent.  She said that her absence was for a very short period of about 30 seconds, but there was no precise timing.  It was at that moment, unwatched or unsupervised by any teacher, that Kian went down the steps.  He successfully managed to descend to the fourth step from the bottom.  At that point he jumped, but lost his footing as he descended a distance of 22.5 inches.  He landed face-down on the bottom step.  Although initially he was conscious, he suffered a head injury.  Fortunately he was seen by a young assistant who was carrying out work experience. 4.  Kian was taken to the local hospital and from there to Alder Hey Hospital where, tragically, he became fatally ill due to MRSA.  It is apparent from the evidence that the death would not otherwise have occurred from the head injury he suffered in the playground, from which he might reasonably have been expected to recover fully. 5.  There is no dispute but that the provisions of the Health and Safety at Work Act 1974 (“the 1974 Act”) imposed a duty on the appellant headmaster in respect of the children playing in the playground.  Section 3(1) imposes a duty on a headmaster in respect of children as being persons other than employees.  It reads:                         “(1)  It shall be the duty of every employer to conduct his undertaking in such a way as to ensure so far as is reasonably practicable that persons not in his employment, who may be affected thereby, are not thereby exposed to risks to their health or safety.” The Act creates offences for breach of that duty and further provides that the burden is upon a defendant to establish the limits of what is practicable.  Where a provision imposes a duty to ensure safety so far as reasonably practicable, it shall be for the accused to prove that it was not reasonably practicable to do more than was in fact done to satisfy the duty (section 40). 6.  Shortly after this terrible accident, the Health and Safety Executive served an Improvement Notice which required the school to provide a gate.  The school was warned that a failure to do so would lead to it being closed.  Accordingly a gate was provided, although there was evidence that the existence of a gate and fence decreased the opportunity for supervising teachers to see into the playground below. 7.  Unfortunately the appellant was not interviewed for a period of ten months.  There then took place a long, discursive interview during which no clear allegation was ever made against him.  There was, it is true, a discussion as to the levels of supervision which he provided during playtime.  It was put to him that he would not be content to permit infants to explore anywhere without supervision.  The appellant pointed out that the staff were experienced and aware of what was necessary.  He then emphasised, as he was later to reiterate, that it was important to instil in the children a sense of responsibility.  He also pointed out that the nature of the playground was such that there were steps everywhere. 8.  There was no specific allegation that a failure to prevent unsupervised access to the steps by a child of three years and nine months amounted to a breach of the duty imposed upon the appellant by section 3 of the 1974 Act.  Indeed it may be that the Executive had not yet appreciated that that was to be their case since it is difficult to see why otherwise, following the interview, there was a further delay of fifteen months before a decision was made to bring a case against the appellant.  That was at a time just over two years after the accident.  He was not tried until four years after it. 9.  On 31 July 2007, at Mold Crown Court, before His Honour Judge Rodgers QC and a jury, the applicant was tried and convicted by a majority of 11:1.  It was only in the preparation of the case that the allegation emerged, first of all, in an indictment which was abandoned.  That was not surprising since the risk identified in the particulars of offence in that indictment was said to be a “risk of death and personal injury from falling during break time”.  Death, we reiterate, had nothing to do with this appellant. 10.  The particulars of offence which the appellant faced before the jury alleged that the risk to safety was “falling on a flight of steps”.  Again that was not accurate.  It is no surprise, therefore, that in their opening the prosecution alleged:                         “The flight of steps to which children aged 3 and 4 years could gain unsupervised access during break times fell within the ambit of the defendant’s conduct of his undertaking.” It was also alleged that the appellant exposed such a child to a risk by reason of falling from the flight of steps.  The prosecution alleged that they could support their case by reason of the appellant designating the steps as being out of bounds.  In fact, the evidence subsequently showed that that was in order to segregate one group of children from another.  The younger children (amongst whom Kian could be numbered) wished to be nearer a teacher and the toilets. 11.  The prosecution called no expert, but they called witnesses who worked and taught at two other schools to establish that they operated a level of supervision higher than that operated by Hillgrove School, a pupil ratio of 2:26.  This was mirrored in a guideline on which the prosecution attached importance, namely that the Department of Health in 1991 had recommended that in respect of nursery classes in schools maintained by local education authorities, the minimum ratio should be 2:26.  No one suggested that that necessarily applied to playgrounds or could point to any published guideline that that was the level of supervision required within a playground.  This high point of the prosecution’s case was somewhat diminished by the evidence elucidated in cross-examination, that the safety record of those schools was far lower than that achieved by Hillgrove School.  In the 29 years before this accident, during which the appellant and his wife ran the school, there had never been any complaint about standards of health or safety.  There had never been a single visit by the Health and Safety Executive.  Nor had there ever been an accident on the steps in question, despite the fact that countless children must have moved up and down those steps, unsupervised by any teacher. 12.  The appellant and another well-respected headmaster from another school spoke of the necessary supervision levels and made the point that the level of supervision will partly depend upon experience and upon the behaviour of the children.  They also stressed, as the appellant had stressed in interview, that it was necessary to instil in children even of the ages of 3 and 4 some sense of responsibility for their own safety and for good behaviour, and not to over-cosset children in their care.  The appellant took the view that one teacher was sufficient to supervise the children at play.  He contended that that was a sensible decision which in part was based upon the highly successful safety record of the school in the past.  13.  The appellant did not rely only upon his own evidence and that of other colleagues.  He also called an expert witness.  That witness, Mr Barnard, a previous inspector and expert in health and safety, had no particular expertise in the conduct of young children in a school playground.  But he was hardly to be criticised for that since the prosecution called no expert at all.  It must be assumed that they could not find anyone of sufficient cogency to justify being called on behalf of the prosecution, or even to rebut the evidence given by Mr Barnard.  That expert took the view that insignificant risks could be ignored, such as those arising from routine activities associated with life in general.  He pointed out the many risks to which young children are exposed at home and stressed what he regarded as the important feature, that nothing had been identified in the construction or placement of the steps which showed that they in themselves constituted a risk of injury.  In his thirty years of involvement in health and safety, he had never found any scrutiny under the 1974 Act focused on such a flight of well-constructed external steps.  He took the view that the steps did not create a foreseeable risk or possibility of danger, still less an unacceptable risk.  Had he been the inspector, he would not have taken any enforcement action or remedial measures and would have had no concern about those steps. 14.  At the close of the prosecution case the judge refused to withdraw the case from the jury.  For reasons which do not require further elucidation, it would have been unsatisfactory had he done so.  But it will be necessary to consider later whether he was correct to refuse to do so.  The basis on which he took the view that the case should be left to the jury is of significance.  He took the view that the jury could properly conclude that the steps constituted a risk to the safety of the child if he were to descend them unsupervised, and that the jury could conclude that it would be reasonably practicable to prevent the child from descending the steps if there had been constant supervision.  We pause to observe that there was never any allegation that there should be constant supervision.  15.  The prosecution, through Mr Horlock QC, correctly points out that the burden is on the defence once the prosecution established a risk within section 3 to prove that it took all reasonably practical measures to alleviate that risk: see section 40.  When it came to the summing-up and his directions of law, the judge appears to have told the jury that they could not convict unless they were sure both that the prosecution had proved such a risk and also had proved that the appellant had failed to take all reasonable practical measures to alleviate that risk.  In so directing the jury, for the reasons we have already identified to be found in section 40, the judge erred in that he was too favourable to the defence.  However, the prosecution had to establish that the appellant had failed to ensure that a child was not exposed to a risk to his safety thereby.  In the word “thereby” the statute is referring back to the conduct of the undertaking — in the instant case the conduct of the school. 16.  In our view it is not necessary to provide any paraphrase of the statutory concept of risk, even though judges have in the past felt it necessary to do so: see, for example, R v Board of Trustees at the Science Museum [1993] 1 WLR 1171, 1171D, in which the court referred to the concept of risk as containing the idea of “a possibility of danger”.  What is important is that the risk which the prosecution must prove should be real as opposed to a fanciful or hypothetical: see R v Chargot Ltd (trading as Contract Services) and Others [2007] EWCA Crim 3032 at paragraph 26.  There is no obligation under the statute to alleviate those risks which are merely fanciful.  17.  How then is the line to be drawn between those risks which are real and those which are hypothetical?  It does not suffice merely to say that that must be left to the good sense of the jury, unless the jury is directed that under the statute a clear line must be drawn if the prosecution is to prove its case.  How is the jury to draw that line?  There is no objective standard or test applicable to every case by which the line may be drawn.  But in most, if not every, case there will be one way or the other important indicia — factors — which the jury are obliged to take into account to determine whether the risk is real or fanciful.  None of them is determinative; but many (depending on the facts of any particular case) will be of importance.  For example, the absence of any previous accident in circumstances which occur day after day will be highly relevant.  That was a relevant feature in the instant case.  The factors which led to this tragic incident must have replicated themselves over and over again throughout the years, but no child fell in such a way as to injure himself as the evidence seems to prove.  Furthermore, no previous accident occurred despite the same allegedly inadequate level of supervision.  There will have been countless times when a child moved, unsupervised, up or down those steps, or chose to jump from one level to another, without any previously recorded accident.  Further, there was nothing wrong with the construction of the steps themselves.  No allegation was made as to how they might have been better constructed so as to avoid an incident such as this.  Moreover, there had been no previous accident elsewhere in the playground, despite the fact that in these two playgrounds there were numerous places from which a child might choose to jump.  There were other flights of steps and other jumping places, including a raised bed on the upper level of the playground, a fire escape (which complied with fire regulations and was external to the building), and many walls.  None of those had caused any problem, or come to the attention of any concerned governor, parent or teacher.  18.  A risk assessment was prepared, as he was obliged to do, by the appellant.  It spoke of supervision in the playground, but it did not identify any risk in relation to different levels on the playground or this particular flight of steps.  The fact that a young child might slip or trip or choose to jump from one height to a lower level is part of the ordinary incidence of everyday life.  That again is not determinative but is highly relevant.  Under section 3 the statutory question is whether the child was exposed to risk “thereby” — in other words, by reason of the conduct of the appellant’s undertaking, of which, without doubt, playground activity was part. 19.  In sum, there were many considerations demonstrated by the evidence suggesting that there was no real risk of the kind which the statute contemplates, and very little, if anything, other than the fact of this tragic incident, to suggest to the contrary. 20.  The prosecution suggested that the greater supervision of the kind no doubt advocated by other schools with a worse safety record would have reduced the risk of a three and three-quarter year old child jumping.  But in the same breath Mr Horlock, with his customary fairness, accepted that that would not have removed the risk.  21.  We acknowledge that the fact that an accident is unavoidable goes primarily to the reasonable practicability of the measures which a defendant might take, rather than the risk to safety.  But that is not exclusively so.  As we have said, that the risk is part of the everyday incidence of life goes to the issue as to whether an injured person was exposed to risk.  Where the risk can truly be said to be part of the incidence of everyday life, it is less likely that the injured person could be said to have been exposed to risk by the conduct of the operations in question.  The judge fairly put that to the jury in his summing-up:  He said:                         “What you must decide is whether there was an unacceptable risk.  The trivial risks of everyday life are not unacceptable.  They are simply a fact of life, are they not?” 22.  Unless it can be said that this child was exposed to a real risk by the conduct of the school, no question of the reasonable practicability of measures designed to avoid that risk arises.  No one in this case has suggested that every playground up and down the country for every 3-4 year old must have a flat surface and nothing from which an infant can choose to jump. 23.  In our view the evidence in the instant case was all one way.  There was no evidence on which a jury properly directed could reasonably conclude that this child was exposed to risk by the conduct of this school.  All the evidence suggested that there was no risk, other than the risk that every time a child was left other than closely supervised, that that child might go unsupervised down a flight of stairs.  No one sensibly suggested that in every school or public building to which young children have access, a child must be “constantly supervised” (to use the words of the judge) when the child chooses to go downstairs. 24.  In the light of that conclusion, the issue of reasonable practicability does not arise.  It was suggested by Mr Horlock, whilst stressing that the prosecution was under no obligation to identify the measures to be taken, that the appellant could have sought advice.  There were, as we have pointed out, no relevant published guidelines as to supervision.  If the appellant had gone to an expert, what if he had gone to the expert he in fact called?  The advice he would have received is that nothing need be done.  Certainly the prosecution identified no expert to which the appellant could have had access and obtained advice to do other than he did do. 25.  We turn to the question of how the judge should have disposed of this case.  As we have pointed out, the judge declined to stop the case at the close of the prosecution evidence.  We suggest that he was correct to do so.  At that stage the full evidence of the history of safety and from the expert had not yet been given.  However, at the close of all the evidence, in our view (although the judge is not to be criticised since no application was made), the case should have been withdrawn.  At that stage it could be seen that there was no basis upon which a reasonable jury could conclude that there was a risk of the type which section 3 identifies. 26.  The summing-up in this case was very fair.  In some respects, as we have pointed out, it was erroneously in favour of the defence.  Where all the indications show that there was no real risk — and there was no indication to set against that conclusion over and above the general proposition that young children may jump from a higher to a lower level — then it was in our view unsafe to conclude that there existed a risk of the kind identified in section 3 of the 1974 Act. 27.  Our jurisdiction is limited to the decision of the safety of the verdict.  We have come to the conclusion that the verdict was unsafe.  We must reiterate our sympathy that the parents have yet again had to run through the ordeal of litigation.  But for the reasons we have given we shall quash the conviction and allow the appeal. 28.  MR HARRINGTON:  My Lord, might I ask for a defendant’s costs order both here and below, please? 29.  LORD JUSTICE MOSES:  Yes, we shall make that order.