A judge has ruled an HSE prosecution over the death of a teenage cyclist null and void because it falls outside the regulator’s jurisdiction.
The judge ruled that the case, which centred on the death of 17-year-old Ruby Milnes when the bicycle she was riding collided with a delivery lorry at York Racecourse, was not an enforcement matter for the HSE but, rather, the local authority, York Council.
On 8 May 2008, Ruby was riding along the Selby-to-York cycle path on a section that runs across part of the racecourse, known as The Knavesmire. The lorry driver was making a delivery in connection with the following day’s race meeting.
The HSE investigated the incident and charged York Racecourse Knavesmire LLP with two offences contrary to s33 of the HSWA 1974 – one alleging a failure to ensure the safety of persons not in its employment; and the other alleging a failure to make a suitable and sufficient risk assessment. The company denied both counts at a Crown Court hearing on 2 May this year.
However, on the eve of the trial, the defence argued that the HSE had no authority to prosecute the firm because it was not the “enforcing authority”. The Health and Safety (Enforcing Authority) Regulations 1998 make it clear that for premises whose main operations concern the “practice or presentation of the arts, sports, games, entertainment, or other cultural or recreational activities”, the local authority for the area in which those premises are situated shall be the enforcing authority.
Counsel for the HSE, Alex Offer, sought to distinguish between the “main premises” where racecourse activities took place and that part of the site where the fatal collision occurred. He argued that the land next to the cycle path was “largely unused” and not part of the racecourse operator’s “main activity”, and was therefore within the jurisdiction of the HSE, and not York Council.
Judge Ashurst disagreed with this interpretation, pointing to clear evidence that “on race days the land adjacent to the cycle path is very heavily used for the coach and car parking. In the absence of a clear and published transfer of responsibilities within premises, a division of enforcement based on quiet, as opposed to busy, periods would be arbitrary and inconsistent.”
He added: “The vehicle, which collided with Ruby Milnes, was in the process of delivering essential equipment for the defendant’s core activity – in this instance, facilities for anticipated race-goers. What was happening was, in my judgement, part and parcel of the main activity of this defendant and the argument that this discrete junction does not form part of the ‘premises’ is artificial.”
The 1998 Regulations allow enforcement responsibility for particular premises, parts of premises, or certain activities to be transferred from the HSE to the relevant local authority, or vice versa. However, this requires agreement and written notification of interested parties.
Judge Ashurst also drew attention to the HSE’s own operational circular (OC 124/8), which states: “Transfer [of enforcement duties] must take place before enforcement action is commenced.” The 1998 Regulations, explains the circular, “cannot be used retrospectively to avoid a defence to enforcement activity brought about by the wrong enforcing authority”.
Declaring the proceedings nullified, the judge expressed his deep regret that the argument was raised at such a late stage and that procedural error may have compounded the anguish of the victim’s family. He said: “Ordinarily, such a challenge to the jurisdiction of the court should be taken at the earliest possible moment, preferably at the plea and case management hearing and before arraignment.”
The HSE said it is giving careful consideration to the judge’s comments and a decision on further action will be taken shortly.
John Cooper, counsel for York Racecourse, declined to comment on why it had taken so long for the argument to be raised over whether the HSE had the power to prosecute the company, citing costs as a “live issue”.
Nevertheless, he said the HSE had failed to follow its own procedures and called for “proper liaison between existing enforcement authorities”.
