Pre-trial hearing, 8th October 2001

His Honour Judge Stokes, Mr Walker QC (Defence), Mr Patrick O'Connor QC (Prosecution)

D: We are not moving for an Abuse of Process Hearing, in the light of a Court of Appeal decision earlier this year. The only matter to be decided is whether the Prosecution calls Roger Grant as a witness. The judge cannot compel the Prosecution to call a witness, but he can require them to do so.

 

J (puzzled): He can't compel but can require?

 

D: Anyone would suppose that Grant is a key witness.

He arranged the system of working that day, he sorted out the banksman, and he saw the operation. He was not an eye-witness to the incident, but he saw the grab before and after. He was present at the “meeting” with the “specialist” re fitting of hooks.

He has been all his life at sea!!

He is not being called because his evidence favours the Defence.

Of Grant's 5 statements, 2 were made before the Divisional Court hearings. These and his 3 rd statement were served on 8 March 2001. The 4 th and 5 th statements were served on 13 July 2001, and were previously unseen by the Defence.

Page 5 of the Prosecution summary includes…. Chains previously wrapped round grab…. Hooks welded inside grab…. Greater and different dangers…. Martell's responsibility… no steps taken to contact the manufacturers (Liebherr)…. No evidence that Martell got advice from proper source.

Grant's evidence (page 14): Stallion Testing recommended fitting of hooks and said where to fix them. Stallion specialise in crane safety.

 

P.: That isn't quite correct.

 

D. (checks notes): Er, maybe not. The final page of Prosecution's Skeleton Argument relies on a conversation between Harris and Grant, of whom one is now dead, and the other is not being called as a witness.

We don't want to call Grant because he may say he just did what he was told by Martell.

Looking at Archbold section 4.2.7.5, if the Prosecution directs its mind to issues of fairness, it will call Grant. The jury should have access to all the available evidence.

So, what can this court do?

Looking at the judgement in the case of Oliver, if the Prosecution is improperly not calling a witness, it is open to the judge to call that witness. The Prosecution should not object to that, as it would be seen as unfair. I invite you to call this witness.

We could call this witness ourselves, or we could do nothing, and then appeal if there were a conviction.

 

J: You might get a dusty answer from the Court of Appeal if this witness was available for the Defence to call!

 

D: Finally (for the 3 rd time)….. Going back to 3.5.8. the judge should rule that the witness is called.

 

P: This application is an order against the Crown. It should be rejected. The court cannot deal with it today. The Defence can raise this point at any time during the trial, and the trial judge can decide.

The judges at Judicial Review were in no doubt as to the obvious degree of danger in the system at Euromin.

The Prosecution are not under duty to call witnesses who have served statements on the Defence. We have no duty to act as Defence as well as Prosecution! The Prosecution summary contains no statements of Grant.

 

(Refers to cases of Richardson and Nugent)

The Defence is saying it doesn't want Grant saying anything embarrassing. Is he an unimpeachable witness?

Grant says 2 things which don't help the Prosecution case. The decision was taken by the Prosecution team, including the CPS and the Police.

•  He saw no risk in the exercise of this system.

•  The changeover from hook to grab was at the instigation of Martell.

 

Re point 1:

How obvious was the risk, which Grant couldn't see, even with the shortened chains? (shows judge large-scale drawings showing headroom under grab in various conditions)

Quite foreseeably, the grab came in below head height. The banksman was critical but he couldn't see the men in the hold because the grab was in the way. Stallard says he was not offering safety consultancy, nor had he seen the system in operation.

Grant's statement is contrary to common sense.

We submit that everyone knew there were safety implications. Grant is the victim of the oppressive regime at Euromin.

 

Re point 2:

See pages 11 15 and 25: There was no particular policy on changing the grab and the hook. Grant says he and others took the decision. Harris says it was down to Martell; the others wouldn't dare.

We don't wish to be unfair to Grant as he is not here, but he may not tell the truth, out of loyalty to Martell, or because of his own guilt, or because he still works at Euromin and is afraid for his job.

 

J: The Prosecution is saying that Grant's statements are not worthy of belief. I should not intervene unless I think the Prosecution is being unfair.

 

D: No witness saw anything wrong with the system before the fatality. Why assume that Grant knew it was dangerous? Harris says that Martell's decision was driven by profit. Conversations between Grant and Harris about changing the hooks are hearsay, and would not be admissible.

 

J: I shall give my ruling at 2.05 p.m.

Summary of Judge's opinion re application of Euromin's defence counsel to require prosecution to call Roger Grant as a witness.

 

Mr Walker Q.C. appeared to accept that the Judge could not compel the prosecution to call a witness. He then said, “require” but His Hon. Judge Stokes could see little difference between that and “compel”. He could recommend such an action and Mr Walker maintained that the Judge had the jurisdiction to do so. Mr Walker says no-one could say Grant was not a key witness; he was present at the meeting with Martell and Stallard and was in charge of unloading the Cambrook on 24 April 1998. He arranged for Simon to be employed and for the Polish crewman to act as banksman. He witnessed the scene immediately before the incident and afterwards.

 

Grant still works for Euromin, is of good character and Mr Walker submits that the prosecution is not calling Grant because his evidence does not support their case.

Mr Walker Q.C. says the decision not to call R.Grant seems to have come late in the day. He notes that statements taken from Grant were used during Judicial Review.

He relies on Martell's evidence that he took expert advice from Ronald Stallard of Stallion Engineering although Mr Stallard denies giving such advice.

He remarks on the long experience of ships and docks gained by Roger Grant and he refers to the 5 statements made by Grant.

 

In the first statement, Grant sets out the origin of fitting the hooks.

In his second statement he relates experience of different ships in similar circumstances and gives further details.

His third statement could be useful to the defence, in it he says Martell was very concerned about Health and Safety and also that any one of three people could make the decision about which hook to use.

Mr Walker Q.C. relies on the meeting between Martell and Stallard, at which Grant was present, where he says Stallard recommended the hooks and where to fit them.

Grant's 4 th statement refers to training of staff. He also says that he saw the position of the grab directly after the incident and that he had never seen the grab close inadvertently before.

In his 5 th statement he says he had seen the open grab before the incident being used with shortened chains and he believed there was no danger whatsoever.

Mr Walker maintains these statements are not inconsistent and he pours scorn on the fact that Grant being still employed by Euromin could affect the veracity of his statement.

 

He quoted the case of Russell Jones where it was ruled that the prosecution had discretion on calling witnesses but must disclose all statements of potential witnesses to the defence, also that all witnesses should be called unless the prosecution believes their evidence to be incredible. Lord Justice Kennedy's ruling in the case of Russell Jones includes a quotation from Lord Parker, “The Judge can interfere and invite the prosecution to call a witness.”

 

Mr Walker relies especially on the 4 th of a number of Lord Justice Kennedy's statements. He also quotes Stokes who like Lord Justice Kennedy says in his 5 th and 6 th propositions, “The prosecution has the discretion to decide who is a primary witness and is the primary judge of who is a reliable witness.”

 

A case from the Court of Queen's Bench was quoted before Judge Stuart Smith where it was said, “The question of a witness' credibility should be related to the content of the witness statement generally and not to his character.

Mr Walker maintained that even though the prosecution had not requested Grant as a witness that the Judge should request that they did so.

 

Mr O'Connor on the other hand says this case mirrors that of Richardson and that he is not required to call a witness if that witness' testimony had never formed a part of his case. It was available to the defence to call a witness that the prosecution could call. Lord Taylor cites a number of authorities – In the case of Balfour, “the prosecution has wide discretion but must call a witness if he is capable of belief”.

 

At no stage have the prosecution relied on the testimony of Grant.

Further, Mr O'Connor tells me I have no jurisdiction in this case and even if I did, the prosecution team have concluded that Grant's statements are not capable of belief. The principal reason for this is that Grant says he was not aware of any danger in the system being used even though this was contrary to what was stated in the safety manual and defied common sense.

He cites a further three points where Grant is not capable of belief and having anxiously assessed the evidence the prosecution has concluded that they do not have to call Grant.

 

Judge Stokes agreed that he had no power to compel the prosecution to call a witness. Thus far the case was on a par with Richardson. Secondly that even if he had the jurisdiction he would not request the prosecution to call Grant because even though not all of his evidence is unbelievable, some of it is. The prosecution was not wrong in principle nor have they acted irresponsibly. He did not conclude that they had exercised their discretion improperly. The defence could call Grant if they thought he was a key witness. Therefore the application is refused.

 

Judge Stokes added that should he not be appointed as trial judge that Mr O'Connor should be prepared to air his reasons again at the start of the trial.