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March 28, 2017

Health and Safety Sentencing Guidelines – Sentencing Very Large Companies and Local Authorities

A year on from the introduction of the Definitive Guideline, it is apparent that its application is making the eventual sentence no easier to predict (except for the fact that in most cases the fine will be larger that it would most likely have been pre-guideline!). On 21 March 2017 at Bristol Crown Court, Whirlpool UK Appliances Ltd were sentenced for a single offence under s.3 of the Health and Safety at Work Act 1974. The prosecution arose from an accident at the former Indesit factory in Yate, when a self-employed fire alarm contractor died after falling from height whilst working on a Mobile Elevating Work Platform (MEWP) that had been struck by items hanging from a moving overhead conveyor belt.

The work was being done at the weekend when there was no production in the factory. The conveyor was, however, undergoing maintenance whilst the alarm contractor worked in a different part of the factory. The contractor was working alone and the work of separate groups was not being properly overseen or managed. The Risk Assessment and Permit To Work did not deal with the risk of the MEWP coming into contact with the conveyor. When the conveyor was started by one group they were unaware that the MEWP was obstructing it elsewhere.

The sentencing judge accepted defence submissions that culpability was low. The company had a generally good approach to Health and Safety and the failings were limited to the events of the weekend work in question. The learned judge also accepted that whilst the harm risk was at level A, the likelihood of an event causing this level of harm was low; this placed the case in Harm Category 3. The offence was aggravated by the death caused. The company had a turnover of £711 million in 2015 which clearly made it a “very large organisation”. Whilst the Guideline gave a starting point of £35,000 for “large” organisations, the learned judge gave a starting point of £1.2 million. As all possible mitigating points were available, this resulted in the final sentence of £700,000.

An equally surprising sentence was upheld by the Court of Appeal Criminal Division this month in R v Havering Borough Council [2017] EWCA Crim 242. A local authority employee received a serious laceration to the knee when he was asked to cut branches from a tree using a disc cutting machine that the manufacturers specifically advised against using for the cutting of wood. All sides agreed there was medium culpability, a risk of level A: harm and a high likelihood of an event causing such harm occurring. The eventual fine of £500,000 was upheld by CACD. The grounds that failed included:

  • “when the level of harm caused falls far below the risk of harm created this should mitigate the sentence.” The CACD specifically pointed to page 5 of the Guideline that dictates that the court should consider at least moving up within the category when ANY harm is caused;

  • “going above the starting point for “large” organisations.” The annual review budget for the Local Authority was £120 million, which the CACD agreed merited a significant increase on the large organisation starting point [although there is no guidance as to how this should be calculated and in this case it is not clear just how much above the £1.3 million figure the sentencing judge had assessed).

  • “that the “substantial” discount for fines imposed against public bodies (step four of the Guideline) ought to be 50%.” The CACD stated that there is no authority for this proposition, and whilst it was not clear by how much the fine had been reduced at this stage, they were satisfied that the reduction had been “substantial”.

    The court also repeated that it was not assisted by references, of any sort, to what the sentence might have been before the introduction of the Guideline.

Both of these examples are critically lacking in clarity as to how the sentencing judge has reached the eventual starting point for a “very large” organisation. Consequently, a calculation of, and advice in respect of the final figure is little more than a lottery. It may be that the Sentencing Guideline Council did not expect many cases to involve very large organisations, but if this is so they were mistaken. The figures at this level are enormous and the resulting degree of uncertainty in such an arena is unacceptable.

Alan Fuller