Patrick Harrington QC - Successful in Headmaster Appeal

28 May 2008

On the 19th of May the Court of Appeal (Moses LJ, Openshaw J and Sir Richard Curtis) heard the appeal by James Porter against his conviction under section 3 of the Health and Safety at Work Act 1974. They quashed the conviction and made a defence costs order.

Mr Porter is the Headmaster of a private school in Bangor, North Wales. On the 7th of July 2004 a pupil at the school, who was 3 years and 9 months old, jumped on a set of steps thinking he was Batman. He lost his footing, fell forward and banged his head. There was no cut nor even a graze but there was some swelling externally and internally. He was taken to the local hospital, transferred to the Alder Hey Children’s Hospital where he contracted MRSA and died. It was a tragic case.

The Health and Safety Executive issued a summons in August 2006. They alleged that Mr Porter had failed to take such steps as were reasonably practicable to prevent the children being exposed to risks. At the trial (His Honour Judge Rogers QC and a jury) the prosecution called no expert evidence but the defence did. A Health and Safety expert, Martin Barnard, gave evidence that the steps did not constitute an unacceptable risk. Although this evidence was not challenged and in spite of a benign summing up, the jury convicted by a majority of 11 - 1.

The defence lodged an appeal against conviction. Gloster J granted leave saying that it did not seem to her that an ordinary set of steps constituted a risk.

The Court of Appeal agreed. The Court was critical of the HSE for the delay and for elevating an ordinary set of soundly constructed, properly maintained steps into an unacceptable risk. The Court pointed to the school’s excellent safety record and agreed with the Appellant’s submission that children should not be wrapped in cotton wool. Some risk is an acceptable part of growing up and learning.

The case has brought relief to many schools whose teachers had been worried by the implications of the conviction. This was the first prosecution of its kind for a playground accident and, it is to be hoped, may put a brake on the HSE’s culture of blame and prosecution.