The High Court has refused to stop a workplace safety prosecution against tractor owner George Ross, ruling that the charge is not the same or substantially the same offence as one for which he was previously convicted.
Mr Justice Twomey delivered the judgment on 3 April 2019 in judicial review proceedings brought by Mr Ross against the Director of Public Prosecutions. The application sought to prohibit a trial in Cork Circuit Criminal Court under the Safety, Health and Welfare at Work Act 2005.
The case arises from the death of 14-year-old Michael Murphy in August 2013, after he fell from a tractor driven by one of Mr Ross’s employees. The tractor’s left-hand door had a defective lock and could not be secured. The judgment says cable ties had been used to hold it shut.
Mr Ross was convicted in the District Court in October 2014 of allowing a vehicle with a defect that was a danger to the public to be driven, contrary to the Road Traffic Act 1961. He was fined €700. The later workplace charge alleges that, as an employer, he failed to maintain the tractor as a safe place of work, and that a person suffered injury and died as a consequence. The charge is brought under the 2005 Act.
Mr Ross argued that the earlier conviction meant he could not be tried again for the same offence. He also contended that holding separate trials years apart was oppressive and an abuse of process.
The High Court accepted that both charges arose from the same circumstances and defective tractor lock. But it found that the offences had different legal elements. The road traffic charge concerned allowing a defective vehicle to be driven and did not require proof that anyone was harmed. The workplace charge required proof of employer duties, risks at a place of work and resulting harm. The court also noted the difference between a summary road traffic offence and an indictable workplace offence.
On the abuse-of-process argument, the judgment considered the HSA investigation, evidence gathered after the first prosecution, and Mr Ross’s awareness by mid-2015 that further investigation and a prosecution were possible. The court said the later charge was different in nature and proof from the earlier one. It observed that the workplace proceedings should have been brought more quickly, but concluded that the delay did not justify stopping the prosecution.
The court refused the application for prohibition. It did not determine whether Mr Ross was guilty of the workplace charge; that trial remained to be heard. The judgment said the trial court would carefully consider the circumstances and Mr Ross’s degree of moral culpability.