Judge blames ‘procedural error’ for halting racecourse hearing

The Health and Safety Executive had alleged two safety offences against York Racecourse following the death of Ruby Milnes, 17, in May 2008.

She was returning home from York college along the Selby to York cycle path when she was involved in a collision with a lorry at a racecourse access road junction.

But the Recorder of York, Judge Stephen Ashurst yesterday ruled the HSE had no authority for prosecuting the case in the Crown Court.

He agreed with an application by defence barrister John Cooper that under legislation the “enforcing authority” for the racecourse is the local authority, York Council.

He said in some cases there were routes for overcoming “such procedural problems in order to do justice”.

“Counsel have been unable to identify any solution to remedy this issue retrospectively. Accordingly I accept Mr Cooper’s argument that these proceedings are a nullity.”

Judge Ashurst said it was “a matter of considerable regret” that the argument “which had a significant bearing on the validity or proceedings” was raised at such a late stage as the trial was due to begin.

“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.”

“All parties had a legitimate expectation that these allegations surrounding Ruby Milnes’ death would be resolved at the conclusion of this trial. I am sorry the procedural error the subject of this ruling may have compounded the anguish of the parties.”

“I imagine the HSE will review their procedures in cases like this where sadly, many unanswered questions remain at the end of the court proceedings.”

Ruby’s parents Al and Dave Milnes who were in court for the ruling and now face further delay said afterwards: “We are deeply disappointed that a procedural error has resulted in the case stalling at this point.”

“We still find it hard to understand how our daughter could have been killed by a lorry on a traffic free cycle path and we remain hopeful that despite this delay those responsible will ultimately be brought to justice.”

Mr Cooper representing York Racecourse Knavesmire LLP submitted under the regulations that local authorities were the enforcing authority where the “practice or presentation of the arts, sports, games entertainment or other cultural or recreational activities” were the main activity.

Enforcement responsibility can be transferred from the HSE to the local authority and vice versa, where for example there is a potential conflict of interest, but that must be agreed and written notification given to interested parties.

Judge Ashurst said that regulation could not be used retrospectively “to avoid a defence to enforcement activity brought about by the wrong enforcing authority.”

Alex Offer, representing the HSE, argued that the part of the racecourse where the fatal collision happened was not part of the main premises where racecourse activities took place but the judge said there was clear evidence on race days the land adjacent to the cycle path was used for coach and car parking.

He said the delivery being made by the lorry was also essential equipment for the defendant’s core activity, in this instance toilet facilities for anticipated racing the next day.

After the case Julian Franklin, HM Inspector of Health and Safety, confirmed they would be liaising with the local authority and said: “It is disappointing that the trial could not go ahead this week. The HSE are considering carefully the comments made by His Honour Judge Ashurst and a decision on future action will be taken shortly.”

York Racecourse had denied failing to ensure the safety of persons not in its employment including cyclists and failing to make a suitable and sufficient risk assessment.