“An eagle for Farrar’s Building: a double bogey for the prosecution” – s.37 of the Health and Safety at Work Act 1974

Matthew Kerruish-Jones and James Rozier, were recently instructed by Philip Tracey and Claire Attridge of Plexus Law, to act for the defendant directors of Greenside Golf Club Limited. Greenside Golf Club were prosecuted by Sevenoaks District Council for allegedly breaching s.37 of the Health and Safety at Work Act 1974 due to their consent, connivance and/or neglect.

The allegations concerned events that took place on or around 28^th January 2017 at the Kent and Surrey Golf Club.

At the time of the alleged offences the defendants were directors of Greenside Golf Club Limited (referred to as “GGCL”) which operated at the premises of Kent and Surrey Golf Club.

In summary, GGCL was contacted by the Edenbridge and District Astronomers (“EDA”) who wanted to organise and host an astronomy event open to the public on 27^th & 28^th January 2017. The EDA had hosted other similar events at the golf club in previous years.

During the course of the event on 28^th January, several members of the public were invited by representatives of the EDA to view the sun via telescopes on an outside flat roof balcony. They ascended and waited on an external staircase in order to go up onto a flat roof balcony so that they could partake in solar viewing activities where telescopes had been set up. Whilst waiting on the stairs, the entire external staircase came away from the wall to which it was fixed and collapsed to the ground, causing injuries.

Originally, a summons was issued against GGCL and both defendant directors in June 2019 and served on them on or about 7^th October 2019 in respect of health and safety offences. The prosecution subsequently withdrew the summons against GGCL thereby leaving charges only laid against the directors,  as GGCL had been wound up and ceased to exist. The matter was sent to the Crown Court for trial.

Prior to trial the defence submitted expert engineering evidence which concluded deterioration of roofing materials at the landing junction would have been concealed. The expert opined that it would not have been obvious based on a visual inspection that the staircase was at risk of failure.

In addition, it was considered that quite a few people using the staircase at one time would explain staircase movement (i.e. wobble) associated with deterioration at the landing junction being pronounced. In the case of one person using the staircase, e.g. to carry out an inspection, any movement might well have been marginal and not readily discernible.

Matthew and James successfully provided written and oral submissions to the Crown Court that the prosecution was flawed against the directors for two principal reasons:

• there had been a shift in emphasis in the way the case was put against the directors suggesting that the emphasis has shifted from the risk of collapse of the external staircase to the risks that someone could slip, trip, fall or otherwise be exposed to some other non-specified risk simply by using a generic external staircase, which was not a risk that, in fact, eventuated. Such a change in emphasis had been informed, solely, it was submitted by the defence expert’s evidence; and
• there was no particularity as to the alleged neglect on the part of the directors (as consent and/or connivance were not alleged).

Following these arguments, the prosecution sought time to reflect on whether there remained a reasonable prospect of conviction and, ultimately, concluded this was no longer the case and offered no evidence against both defendants at a hearing in person, reflecting not guilty verdicts being entered against the defendants.

For further information, or to instruct Matthew Kerruish-Jones and James Rozier, please contact our Clerking Team.

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