R v Leivers 2023


L1 and L2 part owned a company producing pig feed from recycled products which would be delivered to customers using road haulage tankers. An incident took place at the company site which resulted in the death of W and R after they entered a tanker for cleaning purposes but had become overcome by fumes and drowned in the pig feed.

Police officers attended and conducted initial enquiries that were recorded on body worn camera. A conversation between an officer L1 and B, who was the transport manager for the company, was captured. The prosecution asserted that during the conversation both L1 and B admitted asking the deceased to enter the tanker for cleaning purposes and that the company did not employ the use of gas monitors during that process.

The prosecution argument centred on the fact that the company did not have adequate health and safety cleaning procedures governing the tanker cleaning process. There were no qualified persons employed to look after health and safety nor, were there any risk assessments in place or, staff training. It was also argued that no safety equipment was provided and there were no accurate records relating to the cleaning of the tankers. Although the company evidenced that they had previously consulted a health and safety consultant and appointed someone within the company as a health and safety officer, the consultants’ recommendations had not been implemented and the officer appointed internally was not qualified.

The prosecution stated that L1 contributed to the deaths of W and R due to a gross breach of duty of care which she owed as the person with day-to-day control of the workplace. Similarly, she was in a position of authority and should have acted as such.
 
L1 denied the accusations, claiming that she only worked in an administrative capacity and citing that health and safety matters were the concern of the specified officer in the company and, additionally, she was not aware that people entered the tankers to clean them, nor had she asked them to. With regards to any potential admissions made on body worn camera, L1 stated that was down to her being in a state of shock at the time.

L1 was convicted of two counts of gross negligence manslaughter and one count of being an officer of a body corporate who failed to discharge a health and safety duty namely, the duty imposed under section 2(1) of the Health and Safety at Work etc. Act 1974 to ensure the health, safety of welfare of its employees, contrary to section 33(1)(a) and 37(1) of the 1974 Act. As part of the original proceedings, three co-accused (L2, B and the company) were convicted of other associated offences.

L1 made an original application to appeal which was refused by a single judge. A renewed application to appeal was made on two grounds:
  1. The judge should not have permitted the prosecution to rely on footage from the body worn camera of the police officers. Rather, L1 should have been cautioned as she was reasonably suspected of having committed offences. A failure to do so was a breach of PACE Code C and the judge should have exercised discretion under section 78 of PACE to exclude that material.
     
  2. Bad character evidence of previous convictions relating to the company and admitted under section 98 of the Criminal Justice Act 2003 should not have been relied on as evidence of L1's bad character as L1 was only acting in capacity as company secretary at that time. Admitting such evidence may have allowed the jury to conclude that there was something to L1's discredit in the earlier conviction.
 

Held


Application for leave to appeal against conviction refused, convictions upheld.
 
  1. There had been no breach of Code C and there had been no requirement for officers to speak to L1 under caution upon their initial attendance. When L1 was spoken to initially by officers, the matter was in very early investigative stages. The officers were only trying to gain an understanding of what had happened and did not have knowledge of relationships within the company or, an understanding of the dynamics regarding its running. When officers attended at the scene the situation had been fast moving and even had a caution been required, a failure to issue it was understandable and, would have impacted potential lifesaving information being obtained.

    Even if had there been a breach of Code C, that would not have automatically rendered the convictions unsafe. The real test under section 78 of PACE is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
     
  2. Bad character evidence had been admitted, relating to previous convictions of the company regarding a death occurring on the company site when L1 was connected to the company, by being Company secretary. This was a relevant fact, and it was inevitable that L1’s historic connection with the company at a time of the previous fatality would be admitted. This evidence was correctly admitted for the jury to consider and assess how much it assisted them within the present case.