Closing prosecution statement by Patrick O'Connor QC
On Count 1 (Manslaughter)
there are 4 requirements for this offence. You must decide if the evidence
makes you sure that these requirements are satisfied.
On Count 1 (Manslaughter) there are 4 requirements for this offence. You must decide if the evidence makes you sure that these requirements are satisfied.
1) A duty on the defendant to take reasonable care for the victim (in this case, for the safety of Simon Jones)
2) A breach of this duty
3) The breach must have caused the death
4) The breach must be grossly negligent: this will be the major battleground.
1) In law and in common sense, such a duty exists. Mr Martell accepted that if he didn’t carry out his job properly, people could be injured or killed. He felt a sense of responsibility.
The duty of care is not a guarantee to protect people from all risks, but to take reasonable care.
2) Deciding whether there has been a breach of the duty should cause little difficulty.
3) The breach must be a cause of death. It does not need to be the only cause. In workplace deaths, there is often not just one cause. We don’t have to prove it was the only cause, or even that it was the main cause or the last cause; there may be many contributing causes. We do have to be satisfied that it was a significant cause, not tiny or trivial.
4) Gross negligence: many incidents, which involve momentary lapses, such as ordinary traffic accidents or real workplace accidents, are caused by momentary carelessness. This case is much more serious. “Gross” means flagrant or glaring, when viewed from an objective standard. The jury has a critical role in setting standards for society.
What is not needed, in deciding whether the negligence is gross, is any consideration of the mental state of the defendant. Intentions may be put to one side. Mr Martell said, “I didn’t intend to kill or cause any harm.” Even a murderer may not intend to kill. The defendant does not even have to deliberately cause the risk: he may be sure that he was as careful as possible. What you must consider is what he actually did.
Gross ignorance is not a defence for gross negligence. For example, even if Mr Martell had got expert advice from a genuine health and safety expert, he could still be convicted of gross negligence manslaughter.
We did refer to state of mind. We alleged that Mr Martell was either indifferent to the risk, or realised the risk and went ahead anyway. We think the latter applies: he’s not that stupid. If you do conclude that he had that state of mind, you may more readily conclude gross negligence, because such a person is objectively more likely to show an unacceptable disregard for human life.
How relevant is the fault of others: the exercise in hand-washing, and blaming Mr Stallard and Mr Harris? The fault of others is no defence if a significant cause of the death is the defendant’s negligence. This is good sense for it is far too easy for an employer to evade responsibility. Often workplace deaths are blamed on people on the shop floor. Of course, others could be at fault, but that is not relevant. The use of the system by others is still no excuse. For example, if there is concrete evidence that six other businesses are doing the same thing, you could conclude that Mr Martell and the other six businesses are grossly negligent. You may have thought Mr Martell was just “going with the flow.” Mr Stallard thought that Mr Cresdee was using the same system, but that was shown not to be true. Mr Martell cites the case of one employer at Shoreham Harbour 10 years ago, using chains 10 to 12 feet long. This is not relevant.
How relevant is the tragedy? You have to put that to one side and go for objective tests. You are obliged to put sympathy aside. It would be as unjust to convict for this reason as to acquit because you know Mr Martell has three children.
You must deal only with the evidence, which has been presented, and ignore what other witnesses, who were not called, might have said. You should not speculate about the reasons why they were not called.
There is one word, which you must avoid, and it has been repeated like a mantra by the Defence. That word is “accident.” This word causes ambiguity. It is full of innuendo and unstated meaning. It implies that an accident cannot be a crime. A pure accident cannot be a crime. It is an event without apparent cause, an unfortunate event causing injury or damage. This is an unfortunate event, but not a pure accident. That is why we have avoided using the word. It is not an event without apparent cause. You don’t need Sherlock Holmes or Perry Mason to tell you this; there is overwhelming evidence.
Why is this gross and criminal negligence? I have listed it under twelve headings. You do not have to be satisfied with all of them to be able to convict.
1) There were positive acts, which created the risks, not just omissions.
2) There were a number of risks.
3) The seriousness of those risks included the risk of death.
4) Martell did not take a single step to reduce those risks or to protect people.
5) The risks are easily avoided.
6) He stopped others taking steps to avoid the risks.
7) The actual events were not freakish; they were predictable.
8) These events were not an isolated incident, Martell had previously shown disregard for the criminal law.
9) He had been warned in advance, in writing, of his legal duties.
10) All other contributing factors can ultimately be laid at the door of Martell, with the exception of Jim Harris’ momentary lapse.
11) The contributory fault of others was minimal.
12) He has manifested indifference, even after the event, to the consequences to Simon Jones.
1) It can be gross negligence, if someone omits to do things allowing events to happen. This is different; there were positive acts.
2) The risks are four in number:
(a) The structure and integrity of the clamshell grab stem could be compromised. Mr Field, the managing director of Liebherr, told us this. The equipment is not designed to take a load of several tons on that particular spot on that attachment. Nobody knows for sure if the structure was damaged; Martell was not an expert and he didn’t consult one. There was a risk of catastrophic failure.
(b) There was a risk of the grab closing on the chains. This risk occurred to Mr Watson of Pyecroft engineering, who raised it with Roger Grant. Mr Clinch told us that there would be more damage if the chains were under tension as they would be when lifting a load.
(c) The grab being in place compromises the view of the banksman. He may be able to see something through the gap, but the grab gets in the way. How well the banksman can see depends on his angle of view.
(d) There is a risk of the grab closing on a worker. This risk is greatest when the operator is not deliberately operating the joystick. This is the time when the grab is nearest the workers. The driver is waiting for a signal and can be easily distracted.
3) The seriousness of the risk is grave. It is obviously a risk of death. The grab moves with great speed and it has great weight and power. The part of the worker’s body nearest to the grab is the head.
4) It is agreed that no steps were taken; Martell has not suggested or done anything to warn or prepare workers for the extra risks involved in the new system.
5) The risk was easily avoided by using a properly designed lifting hook, which was lying in the shed. There was a stop valve, which had been fitted to make it easier to change the attachments. We don’t suggest that the system being used could have been in any way safe, but as a short cut, it would have been possible to isolate the grab by using the stop valve. Martell didn’t discuss this with Mr Stallard. Closing the stop valve would have made it awkward for the grab to swivel but it would have been easy enough to open the stop valves again. Failure even to attempt this short cut shows his indifference to the risks.
6) Martell stopped others from reducing the risks. He created the risks; others who were more safety-conscious wanted to change the grab for the hook. Mr Harris’ statement tells us that he couldn’t do this off his own bat. He tried it once, and Martell ordered him to change it back. Jim Harris and Roger Grant discussed changing the grab for the hook on the morning of 24 April, but didn’t do it because they didn’t have permission. You may have thought that page 233 of Martell’s police statement is diametrically opposed to this. He says “Jim is quite free.. at no time have I ever said no you can’t…. it’s down to Jim, he had full free hand.” And this is in August 1998, after 4 months of legal advice. Yesterday in the witness box, the truth came out. Martell accepts that there was a previous incident. In a conversation with Mick Czaja, Mick said “Jim’s already changed the grab for the hook” Martell was enraged, said “tell him to change it back”, just to make a point about management control. Martell is not prepared to let Jim change it to protect Simon Jones. This gives an insight into Martell’s state of mind (which is relevant but not a requirement to show gross negligence). If it had been down to Jim Harris, there wouldn’t have been any risk to Simon Jones. There is further misleading evidence, where Martell says that 102 bags were too few to justify changing the grab for the hook. Trevor Ford told us that 110 bags was not a small number and he couldn’t understand why the grab had not been changed. Mr Czaja said it was “a substantial number of bags” and in Jim Harris’ statement he said that if there were 75 bags or more, they would change to the hook. Mr Martell can’t even tell the truth in this respect.
7) The actual events were not freakish. Any worker is not perfect, and can make mistakes. The reason for Jim Harris’ retraining was to improve his handling of the machine. The whole point of Health and Safety legislation and good management is to allow for workers’ mistakes. It is not freakish that the lever should be operated at the time when the grab is still and Mr Harris is not concentrating. The chains being too low is inherent in the system and is accepted by Martell at pages 235 to 237 of his police statement. He says “2 foot, 3 foot, there’s always room underneath” and “Sensible chappies keep their heads down and get on with the job.” This workplace was not IKEA, with a smooth floor and level shelves. There were many more variables. It was not safe with “2 foot, 3 foot” or any other amount of clearance. Even with 10-foot chains, this was not a safe system.
8) The events of 24 April were not an isolated instance. Mr Martell wouldn’t or didn’t or couldn’t answer the question as to why he had not had an unsafe system assessed, which was his duty under criminal law.
9) He had been warned in writing of his duties but carried on with the system. In particular, he did not have full cover for trained banksmen.
10) Many other contributing factors can be traced back to Mr Martell. Consider the inadequate banksman. Mr Martell was always aware of the critical relationship between the banksman and the crane driver. Martell and Euromin had every opportunity to plan, who did what job. Trevor Ford is one man, not full cover. Mr Ford was put to drive the shovel. Why? We are told that Taffy, the regular shovel driver, just went somewhere else to work, but it would still have been possible to cater for the arrival of lorries. The quayside is like a warehouse or store, where hundreds of bags of stones and piles of aggregate are kept. The business keeps a balance by topping up the supplies and by customers ordering in advance. Lorries do not need to pick up materials as the ship is being discharged; they can come at any time. Mr Martell is responsible for this. The reason they needed a shovel driver on that day was that Mr Martell had arranged affairs that way. He could have found a shovel driver elsewhere but he wasn’t interested and didn’t try. He was taking a chance that there would be a banksman on board the Cambrook. Roger Grant didn’t even ask the master of the Cambrook for a banksman; he just said two men. Jim Harris says in his statement that the banksman was inadequate: he thought he could understand him, but something wasn’t right. Mr Ford couldn’t understand the banksman’s signals: he talked about him “flapping his arms around.” Mr Kasprzak thought he was doing the job right. Ms Barringer and Mr Martell agreed that there is no internationally agreed system of signals. The shortening of the chains can also be traced back to Mr Martell. He cannot say “I rely on the chains being full length and calculations of safety are ruined if they are shortened by 2 feet.” The only reliable evidence on this point is that of Mr Harris, who says they were shortened from 8 feet to 6 feet. To Mr Martell it is a matter of complete indifference. He cannot find documents to show the length of the chains. Sean Currey tells us that chains were regularly shortened at Euromin. The chains, which Mr Martell “bought specially”, were fitted with shortening hooks! He took no steps to ensure that they were not shortened. He says at pages 235 to 237 “within 2 to 3 feet it didn’t matter how long they were.” He has twisted himself into contortions of lies, which need carefully examining, as they give an insight into his guilt. He lied about his inhuman conduct after the event, at page 227. In his police interview on 17 August 1998, he said he was not aware of the shortening of the chains “until 2 or 3 weeks ago.” This cannot be true; he would have learnt of this from Roger Grant on his first return to Euromin, whenever that was. In his second version, he says he learned of it verbally in the hours or days following Simon’s death.
In his third version, he said he was driving to London when he got a phone call from Mr Grant and he returned immediately, in time to see Ms Barringer arriving. He would have seen the chains for himself. Where is the truth? It is difficult to unravel from three different versions. It is no coincidence that he is telling lies about this topic: it is so damning for him.
Ms Barringer’s evidence is that he was not there until 30 April. Why did he tell the police he was in London if he returned immediately?
11) If you strip away all the red herrings, and you can see that the only contributory fault of anyone else was Mr Harris’ momentary lapse. All the others can be traced back to Mr Martell.
12) In this final section we cover a number of points. Martell showed indifference to the risk to life. The relevant time is when he was setting up the system. We get a clue in his police interview in August 1998. Put aside his remarks on page 215, where he says it is worse if the person is injured for life. This is a remarkably strange comment to make, and is totally inexplicable. In page 220, the theme is developed: “ it’s an operation that had been carried out.. for a number of years….somebody can touch a lever and what happened happened. Equally the whole boom could come down on somebody’s head, the machine can move like a car, can hit somebody.” It is not an isolated indifferent sentiment. On page 225 he talks about a small number of bags, a competent welder, and “no more expect the driver to close the grab than drive it into a brick wall.” At page 227 he says the machine was well maintained but that was important economically, not a reason for a pat on the back for his concern for health and safety. He asks “how could I protect myself in that position, somebody accidentally operating a lever, any more than somebody taking his foot off the clutch of a lorry when there is somebody standing in front of him?” He asks, “the closing of the grab….how could I prevent it from having happened? I don’t know.”
He rejects Mr Bartlett’s suggestions as to how he could have prevented the grab from closing: “How can you prevent accidents happening unless you watch, three people watching what everybody is doing?”
Consider his conduct after the event. It is doubtful that he ever went back to the site. What human being would not return immediately? If he did go back, he must have kept his head down. He showed callous indifference and a very carefully concealed immediate sense of guilt and responsibility.
How does Mr Stallard fit into the picture? He was used as a fall guy for Mr Martell to blame. His evidence that he arrived by chance at Euromin in February 1998 was unchallenged by Mr Martell’s counsel. Stallion had never before been used for consultancy. There was a safety problem with the old system because there was no secure lifting point, and this is first base for any safe lifting operation. Mr Stallard suggested a secure lifting point, but was given no chance to understand the old system or the proposed new one. He didn’t know that Euromin had the safe Liebherr hook.
On page 231, Mr Martell says the hooks “were welded on specifically…..a design of hook that Mr Stallard led me to believe was satisfactory….I came down with the man for him to see what we were trying to do.”
Mr Stallard is an expert on hooks, lifting gear, and nothing else. Martell’s reliance on Mr Stallard is like the following situation. We know Euromin have a shed with men working in it. Imagine there was a problem with the safety of the roof, and Mr Martell calls in a roofing expert, who sorts out the problem, but in so doing cuts off the fire sprinkler system. This creates a new danger. The roofer shouldn’t have done it, but Martell knew about it, and it was his responsibility. If he says, “I made the whole system safer because I cured the roof problem” it would be nonsense, and you would see through it. This case is similar.
Mr Martell’s counsel asserted that the hooks were put where Mr Stallard suggested. Mr Stallard said “Not at all, sir” and he was quivering with indignation. He was outraged at the suggestion, as he believed that contact between the aggregate and the hooks could compromise the weld.
Mr Martell can’t accept Mr Stallard’s evidence, and yet he has to say he followed Mr Stallard’s advice. Mr Martell says Mr Stallard came in response to a request, and that he knew that Mr Stallard was coming, because he (Martell) had made a request, in advance, for advice. Mr Martell says that Mr Stallard originally told him to put the hooks “up there”, but later agreed to put them lower down. Martell had foreseen the possibility of the grab closing. Imagine Mr Stallard’s reaction to Defence counsel telling him that Martell raised with him the possibility of the grab closing, and Mr Stallard had said “Don’t worry; it will be OK.” The poor man would have had apoplexy! This story has been carefully and assiduously put together by the Defence. It was not put to Mr Stallard. Elaborations on the story were made up after Mr Stallard’s evidence.
What you need to remember is what Mr Stallard stated very clearly, “You don’t operate under an open grab unless you are absolutely sure it’s not going to move”.
Mr Martell could not satisfy me that he was sure the grab would not close.
The conclusions of the expert witnesses, Dr Hinks and Mr Clinch went unchallenged. The defence could have called in expert witnesses to contradict them, but they did not do so. Perhaps they couldn’t find any to contradict their 60 years combined experience. Mr Clinch, with his extensive docks experience, told us that this event was entirely foreseeable and that it was an entirely inappropriate system.
You could call these personal opinions, but they are the opinions of experts.
Mr Harris on page 69 says, “I decided to shorten the chains because of the overhanging lip…couldn’t lift the bags without damaging the ship.” It was a physical problem; Mr Martell with his thirst for knowing everything about the operation should have known this. Mr Harris expressed the opinion that there was still 8 feet from the base of the bag to the grab. But you do not have to accept this. The only reliable measurements were made by Chris Barringer. It is also possible that Mr Harris, who was still employed by Euromin, may have had divided loyalties. You should bear this in mind.
Why do people lie? Innocent people may panic under pressure. You must be satisfied that they told lies to conceal guilt.
Mr Martell has told many lies. Some were trivial lies: e.g. he was locked in a room for his police interview. He went there by appointment with his solicitor and you heard during the recording of his interview that someone accidentally walked in. The door cannot have been locked. There was no pressure; you heard the calm, even tone with which Graham Bartlett conducted the interview. It is a nonsense to say he was locked in and felt threatened, but it is not serious. Then there are the lies about a typical working week. Compare Mr Martell’s evidence with Mick Czaja’s evidence, which when it was put to him Mr Martell accepted.
Then there is Roger Grant; there was no mention in the police interview of Martell’s concern about Roger Grant’s suitability as a safety officer.
There are much more serious lies about his being in London on the day Simon was killed. This is the equivalent of “Where were you when Kennedy was shot?” He cannot expect us to believe that he does not remember where he was when he received such devastating news that one of his workers had been killed.
Then there are the lies about being proactive. He wasn’t being proactive he was simply, albeit belatedly, complying with the requirements of criminal law. He didn’t “consult” Stallard. The conversation only lasted ten minutes, nothing was given in writing and there was no fee. Harris didn’t have a free hand to change the attachments. What he had was a free hand to phone up and ask for permission. This group of lies raises very important issues.
Has he deluded himself into believing his own lies? In reality he cannot fail to know that these are lies. He feels a need to conceal his own guilt.
The Defence tell us that Euromin was a “safety-conscious company.” They couldn’t even test the hooks after they had them welded on. They tell us that the wearing of hard hats is relatively trivial, and difficult to police. Why did Martell not delegate responsibility for health and safety to somebody else? The evidence of Sean Currey, Jodie Taylor and Jim Harris shows that where safety is concerned, Euromin were not doing their best. Jim Harris said, “the hats were on site…it was up to the individual….most people in the hold won’t wear them.” As for the shortage of a banksman being a one-off occurrence, the evidence shows that Euromin were short of men regularly.
If you find Martell not guilty on Count 1, there is no question of the company being guilty on Count 2. The company can only be convicted through Martell. If Martell is guilty of manslaughter, you then have to consider whether Euromin are guilty on Count 2. You have to decide whether Martell was the controlling mind of Euromin. Were his acts essentially those of the company? The evidence should be sufficient: he was the most senior person in the company in England, Euromin have no other premises, and there are no directors in England. Page 113 shows a tree diagram of the structure of Euromin, with Martell clearly at the top. It is agreed that he is a hands-on manager, who keeps detailed contact with every aspect of working practice. The only reason why Mr Hoekman’s name appears on the document prepared by Mr Hutchison, is that he thought this was the correct name, and typed it in himself. The document was later signed by Martell.
Counts 3,4 and 5 as a group are of course not as serious as manslaughter, but do not be misled, they are not alternatives to Count1 or Count 2. They register serious breaches of Health and Safety legislation. Martell and Euromin have defied these for years. These charges are not some kind of soft option or compromise or failsafe.
Count 3 is against the company, which was under a strict obligation to comply with the law. Parliament has decided that this is a criminal offence, with good reason. It seems that no defence has been offered to this charge, which concerns the protection of Simon Jones. There is no issue here of controlling mind; it was the company’s duty and the company’s breach and Martell is not an issue.
Count 4 states that from 1 Jan 1993 to 24 April 1998 there had been no assessment of risks. This is the first base of health and safety law: to identify the measures which need to be taken to comply with the law. Notice the dates: this went on for more than 5 years. In defence, Martell says he got Mr Hutchison in to do an assessment, but he left out Euromin’s key operations, so it cannot be a suitable and sufficient assessment. As for the ten-minute conversation with Mr Stallard, the less said about that, the better.
Count 5 says that on 24 April 1998, Simon Jones was not provided with appropriate instructions with regard to health and safety. The only person who spoke to Simon about health and safety was Sean Currey. He was not an expert, but he took it upon himself to do what he could. The regime was so slack, and showed utter disregard for safety. Martell signed a policy document in May 1997, which referred to the Management of Health and Safety Regulations, 1992.
In convicting, you will get no pleasure. This is a most unpleasant and distressing case. You cannot bring Simon Jones back, but you can carry out your public duty and vindicate the principle that justice has been done.