Summing up by Judge Stokes
You have to decide, on the basis of the evidence, what the facts are: what a particular person did, said or thought at the time. You have a great deal of collective commonsense, and a wealth of experience of life. There are twelve of you. That is the real strength of the jury system. We must accept the facts as decided by you. You must apply my directions as to the law, to the facts as seen by you. I may at times appear to be expressing a view; you are free to accept or reject this view. You are under no pressure as to how you find the facts.
I shall be selective with the evidence. I shall not go over every word: that would not be helpful to you. If you consider that something which I have left out is significant, don’t ignore it. Don’t speculate as to why a certain witness was not called, or why a witness was not asked a particular question. You may think that this applies to Roger Grant, but the advocates decide who to call. Don’t try to guess the reasons; your guesses might be unfair.
Beware of emotion. This was a promising young life that was lost, and it has had a devastating effect on the family. Don’t be tempted to say, even to yourself, that for the sake of the family you should convict. You have to approach your decisions, as judges do, with cool heads, and calm, analytical minds. Beware the dangers of hindsight. Risks may be apparent because of what actually happened. It is easy to be wise after the event.
The law states that there is a burden of proof on the prosecution. With regard to the two defendants, Mr Martell and Euromin Ltd, it is up to the prosecution to prove their guilt, never for the defence to prove their innocence. You must be satisfied beyond all reasonable doubt of the defendant’s guilt.
Normally if there were two defendants, I would rule that you had to consider each separately, but with corporate manslaughter, it is different: On count 1, you must consider whether Mr Martell is guilty of manslaughter.
Count 2 is a similar offence against the company.
You must consider count 1 first. If you are not sure of Mr Martell’s guilt, you must also find Euromin Ltd not guilty. If you find Mr Martell guilty, you can only convict Euromin Ltd if you are sure that Mr Martell was acting as the company, that is, that he was the company’s controlling mind.
Ask yourselves if Mr Martell in reality embodied the company’s operations at Shoreham. This is not necessarily a question of labels; the controlling mind does not need to be a director. It is possible for a general manager to be the controlling mind. You must decide, and if you are in any doubt, you must find the company not guilty. Counts 3 to 5 I will deal with later.
Manslaughter is the unlawful killing of one human being by another. It can be by gross negligence, that is having and breaking a duty of care. That is what the prosecution are alleging in this case. They have to prove:
1 That Mr Martell owed a duty of care to Simon Jones. There is a general liability for carelessness of people one to another, for instance drivers have a duty of care to other road users. It has been said here that Mr Martell owed a duty of care, to take reasonable care of casual workers on the site, especially with regard to the excavator, which had by his instructions been recently modified. The facts are capable of giving rise to a duty of care. You must decide whether the duty of care existed in this case.
2 That the defendant was in breach of this duty, by a negligent act or omission. The emphasis here is on the modification of the system.
3 That the breach of duty was a real or substantial cause of death, and
4 That the breach was so serious as to be gross negligence.
On No 2, you must ask whether Mr Martell was careless with respect to Simon Jones’s safety. On No 3, the question is, did the negligence cause Simon Jones’s death? If Mr Martell was negligent, the defence concedes that there is no doubt as to the cause of death. On No 4, you have to ask whether the conduct was so bad in all circumstances as to be a criminal act or omission. The circumstances must be such that a reasonable and prudent person would have seen an obvious risk of not just injury but death. The degree of negligence must be very high, so grave as to be regarded as manslaughter, and punished accordingly.
The prosecution say that the defendant was either indifferent to the risk, or that he foresaw the risk, and decided to run it anyway, by making the decision to fit hooks where there was an obvious risk of the grab closing. You must look at all the evidence, including that of Mr Martell himself, and consider what he did and who he consulted. You must consider all the evidence, not just that of Mr Martell, and decide if this was gross negligence.
On counts 3 to 5, only Euromin are charged. You must consider the counts separately.
Count 3: Certain statutory provisions govern the operations carried out at Shoreham. Euromin was under a duty to comply with the Health and Safety at Work Act, 1974, in particular to conduct any unloading in such a way that any person was not exposed to a risk to their health and safety. You have to decide whether there was a real and foreseeable possibility of danger to health and safety. Were there risks, and if so, did the company fail to ensure that people were not exposed to the risks?
Count 4 states that from January 1993 to April 1998, Euromin unlawfully (in breach of Regulation 3.1.b of Health and Safety at Work Regulations 1992) failed to make assessment of risks to health and safety to persons not employed by the company. The defence say that an assessment was carried out in February 1997, that Mr Stallard made an assessment in February 1998, and that the company had every intention of carrying out further assessments, but just hadn’t got around to it. This is a matter of fact for you to decide.
Count 5 states that appropriate instructions were not given to Simon Jones. You must not guess what Roger Grant did or did not say to Simon Jones. The only evidence is what Mr Currey said to him. Are you satisfied that there was a failure to give appropriate instructions? You do not need to consider the issue of a controlling mind for counts 3 4 and 5.
You have heard that the defendant is of good character, is 59 years old, and has never been in trouble. This is evidence which you should consider in his favour. He has given evidence himself. His good character may mean that he is less likely to commit offences. This is your decision, and you must take into account his age and experience. The company have no convictions recorded against them. Mr Martell speaks for the company (this is not to say that he is necessarily its controlling mind; you must decide this.) You have heard all the evidence, including that the company maintained its machinery well.
Expert evidence is permitted to provide scientific or other expert knowledge and opinion. It is part of the evidence as a whole, and can help with the consideration of risks, and how obvious these were. Bear in mind that if you don’t accept the evidence of an expert, you don’t have to act on it. You decide whose evidence and opinions you accept. You must reach a verdict on all the evidence.
It has been alleged that Mr Martell has lied to you, or to the police, or both: Telling the police that he was in London, and saying he was at Gatwick to you, That he was being “proactive” in making his assessment in 1997. Concerning what Mr Stallard did, Concerning the “free hand” that Mr Harris had, and About finding out that the chains had been shortened.
You must consider: if he lied, does that affect the case? You must ask yourself, did he lie? If you are not sure, then you must ignore it. Remember the events were a long time ago. There may be danger of real prejudice to the defendant. Memories fade, and people can’t remember with crystal clarity the events of years ago. Are they lies, or are they genuine mistakes? Remember the time lapse. If you decide that he has lied, consider why he lied. It is not in itself evidence of guilt. There are other reasons to lie: to help an innocent defence, to conceal something, in panic, in confusion, or to protect others. If there are innocent reasons for lies, then you must ignore the lies.
My next task is to summarise the evidence. Mr Currey told us that he had worked on that ship before, unloading the same type of cargo. I shall refer to what happened as an accident, because it was not something which was done deliberately. I see no connotations in using that word. Mr Currey told us that the previous system used chains outside the closed grab of the Liebherr. There is a conflict here; most witnesses say the grab was always open, with slings around the centre column. Mr Currey says that for a long job, the chains were outside, and for a short job, they went through the open grab. It was Mr Harris’s job to replace the grab with the hook, and it took 15 to 20 minutes. Other witnesses give variations in the time, up to one and a half hours. This is a conflict, which you must resolve if you think it is important.
On 24th April, Mr Currey arrived early for work, and saw Simon Jones arrive. He confused him with the Liebherr engineer. Mr Currey saw Mr Grant, who he treated as a kind of foreman or supervisor. Mr Currey was sent into the hold, with Simon rather than Jodie Taylor. Normally Mr Ford would be banksman, but that day he was driving the shovel. Mr Harris was in the cab of the excavator. He was described as a fat man, with bulky clothing.
Mr Currey and Simon Jones went into the hold with no helmets on, which he told us was normal practice. No-one asked or told Mr Currey to give Simon any instructions on safety. Mr Currey had to indicate to the banksman that the grab was coming in too low. The hooks should have been just resting on top of the bags. Mr Currey had learned the signals from Mr Ford; Mr Kasprzak’s signals were not understood. Mr Martell had received assurances that Mr Kasprzak was suitable for the job. Mr Currey explained that chains were sometimes shortened. He had never thought of the grab closing. He had never seen, as Mr Ford had, the grab closing in mid-air. This mirrors Mr Martell’s evidence.
It was very noisy in the hold. Mr Currey was standing on the aggregate, the chains had come in too low and had fallen down the side of the bag, and the grab closed, about 2 feet above the bags. Mr Currey had been shown in general terms what to do by Mr Grant. He had been warned of some of the dangers, and felt confident working with Mr Ford and Mr Harris, who he described as “inch-perfect”. He knew that if the chains were too low, in range of people’s heads, he had to signal to the banksman. Mr Martell said he didn’t know that the chains had been shortened, and was horrified when he found out. Mr Currey denied that it took one and a half hours to change the grab for the hook.
Mr Kasprzak told us that he was ordered by the captain to help as banksman. He saw two men working in the hold. He says he knew the signals, and did his best. He could see into the hold. The operation seemed normal. He said the grab was not usual; there should have been a hook. The crane driver appeared to understand his signals. He agreed that the driver would have to be very careful not to touch the controls.
Mr Chichomski, the master of the Cambrook, had visited Shoreham regularly. He wanted to avoid bottoming of the ship. All operations were suspended until Simon’s body was removed from the hold. Mr Kasprzak was competent. He said that the ship kept moving because of the swell. The grab had been used in the past to gather the last of the aggregate.
Mr Ford had worked for 25 years in docks, usually as banksman, but had done most jobs at one time or another. Mr Grant was called a safety officer, but he was no good at the job. He had expected to be banksman that day, but Mr Czaja put him on the shovel. Mr Kasprzak as banksman was giving “sort of “ signals, but they made no sense to Mr Ford. They must have made some sense to Mr Harris. He didn’t know why the grab was being used, not the hook. Changing attachments was the driver’s responsibility, and took 30 to 45 minutes. He had previously seen the grab used with chains outside it. He said that you can’t see as well with the grab in place as with the hook. He had seen shortened chains in use before, but for machinery, not for bags. He had seen the grab partially close above him. It had been a shock. He had seen Mr Harris about it, there was no secret, but it had not got to the ears of Mr Martell.
Shortened chains were not usually used on bags. You may think this is important. The Liebherr engineer must have seen the lifting operation and not commented. He concluded that Simon Jones must have put himself in danger, as even with shortened chains there should have been enough headroom. 102 bags was a large number, and he didn’t know why the hook hadn’t been used.
Jody Taylor was a casual worker, who had been given no training for working in the hold. Mr Harris had explained to him the dangers of the grab. He said that people sometimes didn’t bother about wearing hard hats. There weren’t enough people to do the job. Mr Grant was supposedly in charge, but wasn’t controlling anything.
Mr Hills (emergency services) saw three chains attached to one of the bags, the tide was going out and the body had slipped off the bags.
Mr Brian Fountain (harbour master) said that as Euromin was in the tidal part of the harbour, he had no power over Euromin with regard to safety. He confirmed that there would have been 24 hours notice of the arrival of the Cambrook and that the Cambrook was a flat bottomed boat.
Mr Vines (Liebherr service manager) told us that the excavator could be fitted to customer’s specifications. Mr Vines serviced the excavator 4 or 5 times per year until 1995. To lift bags the hook should be used and he would not recommend using a grab with chains. He had not been asked about using the grab with chains and was unaware that hooks had been fitted. Liebherr would not approve of men working under the grab. It took about one hour to change the hook for the grab. The excavator was mechanically in good order.
Mr Watson (Pyecroft engineering) is a welder. Mr Grant asked him to weld 2 hooks. Mr Watson was worried that the chains could be damaged if the grab closed.
Mr Ingrams (Liebherr service engineer) serviced the excavator from June 1997 always with the grab in place. On his last visit on 17 March 1998 he noticed the hooks. No one sought his views about these hooks. He was at Euromin on 24 April 1998. He was aware that the excavator was in use but didn’t know that the hooks and grab were being used. He is not sure if he would have brought this to Liebherr’s attentions had he known. It was not his brief to do this though he had never seen hooks in such a position before.
Mr Harris’ statement – the defence cannot cross examine Mr Harris to challenge or explore his statement and this is a handicap for the defence. The system in place before Mr Martell arrived was with the chains wrapped around the hinge bars and the chains hanging down. Although Mr Harris said Mr Kasprzak was not using standard signals he could understand him. You will remember that Mr Harris asked Mr Grant if he had permission to change the grab for the hook.
From when Mr Martell arrived at Euromin, he took full control of decisions over working practises. If there were more than 75 bags, normally they would change the grab for the hook. Martell would tell Grant when to change them over. “On one occasion when there were more than 100 bags, I took it upon myself to change the grab for the hook and Mr Martell said to change it back again.”
Mr Harris was not told to change the grab for the hook on 24 April 1998. If he had been told, he could have done it. He decided to shorten the chains to avoid damaging an overhanging lip on the self discharge system. This left 3 feet of chain below the grab, which, in his opinion was a safe distance. Nowhere in his statement does he accept or say that he had inadvertently closed the grab.
Mr Field (managing director of Liebherr) said that shut-off valves were to prevent spillage of hydraulic fluid, but this was not mentioned in the literature. The company will always help customers if they have any problems or queries He would not approve of fitting hooks to the grab, because it affects the structural integrity and could weaken the column; also the proper lifting hook had been supplied.
Mr Stallard, you may think, was a very important witness. He is a highly experienced man. In February 1998 he met Mr Martell and Mr Grant. The attaching of hooks was discussed, all agreed that it was safer and easier with hooks fitted. Mr Martell was concerned with speed and safety. The words used were, “simpler, safer and quicker”. Mr Stallard indicated that the hooks should be placed high up on the column. He said, “you could lock off the valves and the grab wouldn’t close”. Mr Stallard was not told that Euromin had the proper lifting hook, nor that the hooks were actually welded lower down than Mr Stallard had suggested. He said, “You don’t work under a grab unless you are absolutely sure it is not going to move”.
Stallion gave no advice to Euromin on safety at this meeting: this was not a safety consultation. He denied advising the fitting of the hooks in the position where they were in fact welded, because of the likelihood of damage to the hooks by the aggregate. He also said, “if I thought there was any risk of the grab closing, I wouldn’t have suggested using the hooks”. He said he had seen a grab and hooks used together at Jordans’. But Mr Cressdee of Jordans’ told us they never used a clam shell grab at all. You must ask yourself has Mr Stallard made a mistake? Has he seen this elsewhere or is he just plain wrong?
Mr Hutchinson (ATB Landbase) did an assessment in Feb 1997 and found various deficiencies. Work on the quay was not included in this assessment as no work was taking place there at the time; it did not include the discharge of vessels or loading of lorries. He was never called back and was therefore never asked to assess the safety of the system or the training of the banksman. With the benefit of hindsight he tells us that the system was inherently unsafe. In Feb 1997 there was criticism but the place was no worse than many others. Mr Martell was very concerned with regards to safety but he did not know if the recommendations were carried out. In the policy statement, a duplicate of which was signed by Martell, it states that you will not be asked to undertake any task for which you are not adequately trained or supervised.
Mr Chris Nelson (Liebherr senior service engineer) in his statement tells us the valves were there to switch off the oil supply. If off the grab cannot be opened or closed. The grab can be attached in the opened or closed position. The ball valves are not safety valves as such but they would stop the grab moving.
Garret Aplin (Personnel Selection) – workers were deemed to be under the control of Euromin while they were there. Simon Jones had registered in 1995. They tried to ensure workers were fit and trained. He refers to Roger Grant as the manager of Euromin. Simon was assessed as having relevant experience.
Gary Hood (Personnel Selection) – interviewed Simon Jones and had discussed some safety issues with him e.g. always stand clear of the load, never stand between the cargo and the side of the ship.
Chris Barringer (Health and Safety Inspector) measured the chains as 1.8 metres excluding the rings and hooks giving a total 2m in length. She said it was hard to walk across the cargo and keep her balance. No one seemed in overall charge, lorries were moving to and fro. The controls in the cab were very sensitive. On 30 April 1998 she saw Mr Martell who gave her documents, including Health and Safety documents and notices. Miss Barringer issued 2 prohibition notices referring to the use of the excavator and an improvement notice giving them 5 weeks to train staff. She had never seen this arrangement with a grab and hooks before. It was not a safe system.
Dr Hinks (HSE Mechanical Engineering Expert) said that health and safety inspectors not only enforce the law but also advise. He went to Euromin on 28 April. A number of people were there, but not Mr Martell. He saw the chains and the grab. He had never seen an arrangement like that before; if he had seen it, he would have stopped the work and issued a prohibition notice. There were risks to the integrity of the hooks and to the chains if the grab were to close. The risks were increased by the inability of the operator to see. There should be a trained banksman with full knowledge of signals. The controls were sensitive, and people should not work under the grab. There is no way that the method used could obviate the risks. Euromin had the proper hook, which would have eliminated the risks. He referred to the Docks Regulations. Mr Walker pointed out that nowhere did he suggest using the valve as a safety measure. Dr Hinks did not recommend the use of the valve.
Barry Clinch (HSE Docks Expert) said to lift bags you would normally use a hook sometimes associated with a rectangular frame. He had occasionally seen chains used around a closed grab but never with an open grab as in the Euromin system. This system involves risks with visibility. The skill of the banksman becomes more important. The deck is a moving platform; the controls for opening and closing the grab are very sensitive; it’s like putting your head in a lion’s mouth.
There is danger of damage to the chains, which could make the load drop. It is difficult for the banksman to be precise with position of the chain slings because of the size of the grab. The joystick could be operated with one finger like a computer game. It is spring-loaded and responds quickly. The technical drawings omit the extra length of chain taken up by the end rings.
Police interview with Martell - Page (197) Martell is the general manager; he reports to a director in Holland. He is the most senior person in Euromin in the UK. P.198 deals with his experience in the dock industry; for 10 years he was general manager at Shoreham. On p.199 He describes the staff at Euromin; on p.200 he says that he has no deputy as such but different people have responsibility for different areas. P.202 deals with casuals; these come ready to work on ships with hats, jackets and boots; this is part of the agreement. On p.203 he says you couldn’t train a man prior to arriving, every ship is different. Mr Bartlett asks who ensures that the men are told properly what to do? Martell replies, ”This is a difficult area, how many people do you have looking after one man? There was a hard core of experienced workers; I wasn’t there all the time. This is a grey area, how much supervision there should be. You only have to look at my safety record. Site awareness training is a lot more intense now; we realised what happened and that there are loop holes.” On p.208 He was asked in what circumstances would ship’s crew be used, and he replied, ”Rarely”.
On p.209, He is asked, ”How critical is the banksman?” He replied, ”As critical as the driver. You assume the master will provide somebody who knows what’s going on.”
We must ask, “Why was the grab too low?” There should have been ample distance below it; an absolute minimum of 2 metres. We are led to believe that on this occasion it was less than normal. Martell said there was plenty of room to get under the grab to fit the chains.
D.S. Bartlett asked Martell if the distance available on 24 April 1998 was satisfactory, to which he replied, “From what you say, no. It is up to the hatchway man to see that the grab does not come too low.”
D.S.Bartlett asked, “Where were you on 24 April 1998?” and Martell replied, “In London” Asked who was his Health and Safety Officer he replied, “I don’t have one, I rely on the cooperation of the staff, I have a good working relationship with them,; I rely on people being sensible”. P.219 He says that the use of the excavator with the grab is common practice. At the bottom of p.220 he says that the operation had been carried out on the wharf for years. He says, “How could I know this was going to happen?
Equally the whole machine could have moved like a car. The operation had been carried out quite safely as long as I was there and even before. If we were going to be lifting bags all day we would use the hook.” On p.223 we are told that Liebherr makes and supplies lifting hooks and it takes 2 hours to change over. For lifting a small number of bags, the adaptation of welding hooks inside the bucket was made to save time. Asked what was the advantage of the correct designated hook, he replied, “None, except that you can lift out more bags at a time with it”. D.S.Bartlett asked, “Which is safer?” Martell replied, “With hindsight, obviously the hook but I had never known the grab to close before. Harris was a very experienced man; I would not want to put somebody’s life in danger. There were two or three things happening together which caused this to happen.”
On p227 he says, “How could I have protected myself? It is like someone sitting with their foot on the clutch of a lorry at traffic lights, if the foot slips , the lorry can move forward and kill someone.” He says he wasn’t aware of the shortened chains until 2 or 3 weeks before his police interview. Asked in what circumstances the chains should be shortened, he says, “They shouldn’t be.” On p229 he says that even if the chains were shortened the ends of the chains should be well outside the grab. On p233 With regard to changing the grab for the hook, Martell says, “If Harris says to Grant that he wants to change to the hook, he could. At no time have I ever said you can’t”. Then he says, “2 unfortunate circumstances made this an unsafe operation.” He continues, “but 2 foot, 3foot, 6 foot it makes no difference because the grab is supposed to stay still.” Bartlett says, “Eight foot is arguably safe?” Martell said, “Yes that’s what should have happened.”
Martell was cooperative with the police, provided documents they asked for and had no previous convictions
Martell’s testimony: He was in daily contact with Grant or Czaja; his mobile phone was always on. He was in contact weekly with Hoekman re budgets. He had no shares or stake in the company, and was paid a salary of £35,000 per year. When he arrived at Euromin he made changes including appointing Roger Grant as safety officer, having more rigorous training involving ATB Landbase and Neil Hutchinson. He said he was being pro-active. He accepted that there had been no assessment of loading or unloading ships in February 1997, and that the programme took some time to implement.
There were on average one and a half ships per week, and they gave up to a week’s notice of arrival. 75% of ships arrived late. The machinery was well maintained. Martell was in very close regular contact and knew what was going on. The hook was at Euromin but was only used if there were hundreds of bags; otherwise they used chain slings wrapped around the grab. To increase safety, he asked Grant to approach Stallard. He knew Stallion as experts on chains, and thought it appropriate to consult them rather than Liebherr. Stallard produced the hooks and showed where to weld them - where they were in fact welded. Stallard at first suggested higher, but when Martell said that this would foul the hydraulics, he then put them lower.
There had been no routine visits from the HSE and Liebherr had expressed no reservations about safety. On 24 April he spoke to Grant about using crew men, saying, “OK as long as the master is satisfied that the men supplied are suitable.” He heard about Simon’s death when he was on the way to London, and returned. He couldn’t recall any discussion about the grab or the hook. There had been a problem with Harris changing it previously without permission, and Martell had told him he could “bloody well change it back.”
He was the manager in full control and needed to know everything, and he was always involved in decisions about machinery. He was not happy about the ship bottoming. The grab was sometimes used to help unload aggregate. He thought it was OK to use Kasprzak as banksman. He had never considered the possibility that Harris could close the grab. He had always totally trusted Harris; he expected at least five feet distance between the grab and the men.
Euromin had no previous convictions, and had a good safety record. Martell found his police interview frightening and he felt himself under pressure. The parent company had no control over health and safety. Martell accepted his responsibility to ensure health and safety. It was his decision to install the new system. Grant was an unsatisfactory safety officer, so he brought in Hutchinson. He didn’t know that he had to have a safety officer, and he couldn’t say why he had done no risk assessments at all in three years.
He agreed that the key operations were loading and unloading ships, and that this needed to be assessed. With hindsight, he accepts there was no excuse for failing to do it. He supplied hard hats, and did his best. He knew that ships move on the swell, and that the uneven surface of the bags was slippery. The excavator lacked finesse with its movements, and you can’t make assumptions about the distance that the grab has been lowered. Mr Stallard said, “You don’t work under an open grab unless you are absolutely certain that it is not going to move.” Martell agreed that he never expected Harris to close the grab. He knew that the hook welds needed testing, but decided to wait until the annual inspection.
Martell had seen an excavator with chains used inside the grab in Shoreham harbour. He denies that he did not consult Liebherr because he knew they wouldn’t approve. He had been assured by Stallard that the chains would only be damaged by the grab if it closed. He didn’t agree the grab was most likely to close when the workers were underneath it. He did not knowingly operate an unsafe system. Stallard supplied the hooks and he relied in him to say if the proposed system was unsafe. The Liebherr hook eliminated some risks, but not that of the hook dropping unexpectedly. Martell didn’t see why the workers hadn’t fitted the hook; they should have consulted him.
He said 102 bags was a small load. He denied that he was trying to offload the blame. He said, “Everything stops with me.” If they couldn’t supply a banksman, this was no problem; the bags could be left in the hold until the aggregate had been discharged. The information he had received was that the banksman was competent. He thought he had taken all reasonable steps. He assumed that Stallard was a professional. In his police interview he said he didn’t have a safety officer: this was correct, but Mr Hutchinson was effectively doing this job. He accepts that Harris could make some mistakes, but not this mistake. He had passed his CITB test and didn’t have any shortcomings re safety. Martell was not aware the chains had been shortened. He felt it was very important to keep control on site. He did not think of using the shut-off valves to ensure the grab stayed open.
The prosecution must establish that Martell owed Simon Jones a duty of care and that duty of care was breached. This breach must be a substantial cause of the death and must have been grossly negligent. The prosecution do not have to establish deliberate intent to kill. The prosecution alleges that Martell was indifferent to the risk and was trying to shift the blame onto others. Mr O’Connor says that the word “accident” is loaded, but I am going to use it because the act was not deliberate. Mr O’Connor states that an accident is an event without obvious cause, but here the cause exists and he alleges that is the overwhelming negligence of the defendant.
He placed Mr Martell’s actions under 12 headings. I shall go through them briefly.
1 There were positive acts as well as omissions.
2 There were a number of risks.
3 These risks included the risk of death.
4 Martell took no steps to reduce the risks.
5 The risks were easily avoided.
6 He prevented others reducing the risks
7 The events were not freakish but predictable.
8 Martell had shown previous disregard for the law.
9 He had been warned in advance of his legal duties.
10 All other factors can be laid at Martell’s door save the momentary lapse of Jim Harris.
11 The contributory fault of others was minimal
12 He showed indifference, even after the event, to the consequences to Simon Jones.
The prosecution invites you to convict Martell and Euromin, on the basis that Martell is the controlling mind. As for the consultation with Stallard, this was not a consultation at all.
For the Defence, Mr Walker argues that Martell is not the controlling mind of Euromin; he is simply an employee. Euromin is not a one-man company. He reports to directors in Holland. It is the Prosecution’s job to prove guilt. Mr Martell gave evidence, but he does not have to prove anything. It is not for Mr Martell or Euromin to prove their innocence. You must not speculate on what other evidence there might have been. The delay of three and a half years may affect some witnesses’ memory.
The Defence does not accept that Martell owed anybody a duty of care; any duty is that of Euromin only. Martell was not negligent; he inherited the system and asked Mr Stallard how to make it safer. Even if he was negligent, was it criminal negligence? There was a freakish combination of circumstances. Under the normal system, the grab would be several feet above the men’s heads and there would be no danger. There was no need for the grab to close. The excavator was being driven by a competent man. The banksman was not English, but was competent. His signals were understood by Harris.
For some reason the grab came in too low, Sean Currey should have signalled to the banksman. The chains had been shortened by Harris; this action can’t be justified. Harris operated the lever when Simon Jones was under the grab. What are the chances of all these things happening? Remote in the extreme. Martell didn’t know about the chains being shortened. Harris didn’t explain why he operated the lever. There was negligence, but by Harris. Expert witnesses said they wouldn’t approve of the system, but no-one had thought it was dangerous before. Mr Kasprzak said he couldn’t understand why it had happened.
Mr Stallard’s evidence is completely destructive of the Prosecution’s case. Martell asked him for advice on making the system safer. We have been told that Stallard was not an expert on safety, but he gave advice, whether he was asked for it or not. Stallard said to Ms Barringer that the method of operation was common, and that the grab should clear the slingers. The technical drawings were inaccurate; there should have been three metres clearance.
(At this point, Mr O’Connor interrupted to correct this figure to three feet)
No health and safety officer had been appointed: this was true but Martell appointed Hutchinson. What difference does it make whether Harris had a free hand? Martell was being honest when he told us of teaching Harris a lesson.
On Count 3: Of course Simon Jones was exposed to risk, but this must be a reasonably foreseeable risk. As to risk assessments, the HSW act doesn’t require these to be in writing. The February 1997 assessment and the consultation with Stallard are adequate.
On Count 5: The Prosecution must prove that Simon Jones was given no training. Personnel Selection gave him instructions, and we have no evidence of what Roger Grant said to him.
You must first consider Count 1, then if necessary, consider the issue of controlling mind. Counts 3, 4, and 5 must be considered separately. Choose a foreman to chair the discussion, and let everyone express their view. Forget what you may have heard about majority verdicts; at this stage you must try to get a unanimous verdict. I cannot accept a verdict between 12.55 and 2.05. There should be no pressure of time. If this is not done today, so be it. I will send for you at 4.15 if there is no verdict by then.