An unsafe case

In August 2001, a four-year-old boy died after falling into a septic tank. The tank was in a field adjoining a caravan site – although not part of the site itself – where the boy was on holiday with his family. According to his elder brother, the two of them were jumping on the tank’s manhole covers when one of them appears to have up-ended, causing the boy to fall into the tank.

Mr Kelly was employed by his company to manage the site. Mr Frear was the director with special responsibility for safety. In July 2003, Mr Kelly was convicted by a jury at Truro Crown Court of manslaughter and Mr Frear of an offence of criminal neglect under the Health and Safety at Work Act.

The manhole cover that had fallen into the tank was in reasonably good condition, and the lip of the cover, designed to rest on the rim of the manhole, was full and intact. The case against the defendants was that the cover could not have been sitting securely on the rim and that they should have realised this – there was no evidence that they did in fact realise it – and done something about it.

Unfortunately, remedial work carried out after the accident had destroyed all potential evidence of the condition of the manhole rim at the critical time.

The judge reminded the jury that: “The crown must prove that the breach of duty in question was so bad, so gross, that it should be characterised by you as a crime – and not only as a crime, but the very serious crime of manslaughter.”

In her sentencing remarks, the judge said: “Both defendants before me took a great interest in trying to protect the safety of their visitors; and, Mr Kelly, you were extraordinarily diligent, save for this one tragic area.

“It seems that everybody who knows you, who has worked with you, who has visited the site, describes you in the same way – hard-working, incredibly conscientious and totally committed to the happiness and safety of your customers.

“Nothing, it seems, was ever too much trouble for you. If you had the slightest idea, in my judgment, that those covers were in a dangerous condition, you would have done something immediately. All the evidence indicates that health and safety of that site was your number one priority; the safety of children was your number one priority. You won awards for your approach to health and safety. This site, I am told, was one of the best-run in the country.”

Mr Kelly was convicted of manslaughter and Mr Frear of criminal neglect under the Health and Safety at Work Act

To Mr Frear, the judge said: “Mr Frear, had you not told the police in interview about your pre-season risk assessment, you would not be sitting there now. You stand convicted because you did that extra bit, as a director, to try to protect your visitors.”

In the light of these remarks, it might not come as a surprise to know that in May, the Court of Appeal quashed the verdicts. In the meantime, however,

Mr Kelly and Mr Frear have each had to live with a criminal record. What lessons should one draw from this sad story? Some people might regrettably but understandably be tempted to conclude something along the following lines:

• Being incredibly conscientious may not be worthwhile
• Don’t be inclined to do that extra bit
• Don’t try to be helpful in interviews following accidents, even – or especially – fatal ones.

Are prosecuting authorities basing decisions on whether to prosecute more on the consequences of an alleged offence than on the severity of the offence, if there was an offence?

The law on safety should not be treated like the law of negligence, where a single act or omission, if it was negligent, might make one liable in a civil claim for damages, even though one might otherwise have done an excellent job.

The aim is to promote a culture, under which businesses will give priority to safety and be active in identifying risks. That is unlikely to happen if criminal liability is seen to be a matter more of bad luck than genuine culpability.