Whirlpool UK Appliances Ltd v R (Upon the Prosecution of HM Inspectors of Health and Safety)
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon CJ |
| Judgment Date | 20 December 2017 |
| Neutral Citation | [2017] EWCA Crim 2186 |
| Docket Number | Case No: 201701764 A1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 20 December 2017 |
[2017] EWCA Crim 2186
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BRISTOL CROWN COURT
His Honour Judge Patrick
S20170069
Royal Courts of Justice
Strand, London, WC2A 2LL
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON THE Lord Burnett of Maldon
THE HON Mr Justice Teare
and
THE HON Mr Justice Kerr
Case No: 201701764 A1
Mr Dominic Adamson (instructed by Plexus Law) for the Appellants
Mr Alan Fuller (instructed by Lester Aldridge LLP) for the Respondent
Hearing date: 21 November 2017
On 21 March 2017 at the Crown Court at Bristol the appellant company was sentenced by His Honour Judge Patrick to pay a fine of £700,000 having earlier pleaded guilty to an offence contrary to section 3(1) of the Health and Safety at Work Act 1974 [“the 1974 Act”]. That imposes a duty on an employer to conduct its undertaking in such a way as to ensure, so far as reasonably practicable, that persons not in its employment are not thereby exposed to risks to their health and safety. This prosecution was brought following the death of Mr. Clive Dalley, a self-employed alarm and telecommunications contractor, who died as a result of an accident at the appellant's premises on 21 March 2015.
This appeal against sentence is brought with leave of the single judge. Mr Adamson, who appears for the appellant before us, as he did below, submits that the judge erred in his application of the Definitive Guideline on Corporate Manslaughter, Health and Safety and Food and Safety Hygiene Offences, effective from February 2016, with the result that the sentence imposed was manifestly excessive. Three issues fall for particular consideration in this appeal. First, the impact of a death on the approach to the ranges set out in the Guideline. Secondly, how one identifies and then treats a “very large organisation” for the purposes of the Guideline. Thirdly, the impact of relatively poor profitability in the context of an organisation with a substantial turnover.
The Facts in outline
Mr Dalley was a self-employed fire alarm and telecoms contractor of 30 years' experience who was frequently employed as a sub-contractor at the appellant's Indesit factory in Yate near Bristol. On 21 March 2015 he was working on the fire and heat detector systems from a mobile elevated working platform which he had manoeuvred into position between hanging baskets on the overhead conveyor system. The overhead conveyor system was set in motion by an employee of the appellant who was part of a maintenance team working elsewhere on the conveyor. One of the baskets knocked the working platform causing it to topple and Mr Dalley to fall. He suffered multiple fractures and died ten days later from complications arising from his injuries.
Both the appellant and Mr Dalley (who had comparable duties as a self-employed contractor as those imposed on the appellants under the 1974 Act) were aware of the risks involved of working at height and also that the maintenance work was to be carried out that morning. Two days before the accident, Mr Dalley had discussed the work with the maintenance co-ordinator at the factory and they walked through it. It was agreed that he would return on the Saturday when few people would be in the premises. It was explained that the maintenance team would be working on the conveyor system at the same time and that their work would take priority over his. A permit to work system was operated. Mr Dalley was issued with a permit. There was a risk assessment relating to working at height. It was agreed that Mr Dalley would tell the other workers when he wanted to do his work to enable them to turn off the conveyor system.
On the morning in question, Mr Dalley told the maintenance workers that he was going to have a cup of coffee before he started his work from the working platform. They continued with their tasks which required the overhead conveyor to be turned on and off intermittently. Unfortunately, they were unaware that Mr Dalley had returned and raised his working platform to a position vulnerable to being struck. It was in those circumstances that this tragedy occurred. It illustrates the importance of systems being devised which recognise human frailty and the possibility of a small oversight giving rise to serious potential consequences.
The failures which gave rise to the breach of section 3 of the 1974 Act were:
a) The appellants did not require Mr Dalley to prepare a job-specific risk assessment and method statement for the work he was to carry out on 21 March 2015;
b) The appellant could have prepared a more detailed Permit to Work which specifically identified the potential risk posed by a working platform being used in the vicinity of the overhead conveyor and the control measures required.
The Guideline
The Guideline provides a structure within which to sentence for breaches of health and safety legislation. At Step One, the court is enjoined to determine the offence category. As part of that exercise it must first decide “culpability”. There are four levels of culpability: very high, high, medium and low. The conduct described in the Guideline to inform the assessment of culpability ranges from “deliberate breach of or flagrant disregard for the law”, at one end, to “offender did not fall far short of the appropriate standard” at the other.
Consideration of “harm” follows in the context that the offences under sections 2 and 3 of the 1974 Act are ones of creating a risk of harm. The Guideline requires the court to determine both the seriousness of the harm risked and the likelihood of that harm arising. Each of those factors may be ascribed to one of three categories. The hierarchy of harm is then divided into four categories by the Guideline, as set out in the following table:
Having identified the appropriate level of harm, the Guideline then requires the court to consider whether the offence exposed a number of workers or members of the public to risk and whether the offence was a significant cause of actual harm. It continues:
“If one or both of these factors apply the court must consider moving up a harm category or substantially moving up within the category range at step two … The court should not move up a harm category if actual harm was caused but to a lesser degree than the harm that was risked, as identified in the scale of seriousness…”
At Step Two a starting point and category range are determined by focussing on turnover, with aggravating and mitigating features influencing where in the range the starting point lies. The Guideline describes organisations as large (turnover £50 million and over), medium (turnover £10 to £50 million) small (turnover £2 to £10 million) and micro (turnover up to £2 million). In respect of each, there is a table bringing together the four possible levels of culpability and four possible harm categories. By way of illustration, and also because it is at the heart of the submissions we have heard, we reproduce the table applicable to large organisations:
The Guideline provides for larger organisations in this way:
“Very large organisations
Where an offending organisation's turnover or equivalent very greatly exceeds the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence.”
The Guideline includes a non-exhaustive list of factors both increasing seriousness and those reducing it, or reflecting mitigation. It explains that recent relevant previous convictions should result in a substantial upward adjustment. The impact of both aggravating and mitigation features may result in a move outside the category range identified in the Guideline.
We pause to observe that the features of the Guideline we have so far referred to reflect its inherent flexibility necessary to meet the broad range of circumstances that fall to be considered in breaches of sections 2 and 3 of the 1974 Act. In considering a guideline replete with so many figures there is a temptation to approach its application in an arithmetic way. In our opinion that should be resisted. In this area, as much as any, the court should not lose sight of the fact that it is engaged in an exercise of judgement appropriately structured by the Guideline but, as has often been observed, not straitjacketed by it.
Thus far the court will have taken account of culpability, harm (with its two components as set out in the Guideline), the extent of those exposed to the material risk, the incidence of actual harm, the turnover of the organisation and aggravating and mitigating factors to determine a starting point. Mr Adamson submits that in addition to turnover, the broader financial health of the organisation could fall into account at Step Two for the purpose of the Guideline. We do not agree. It is clear from its terms that such factors come into play at Step Three.
Step Three requires the court to “check whether the proposed fine based on turnover is proportionate to the overall means of the offender”. It identifies three general principles affecting sentencing at this stage. It notes that section 164 of the Criminal Justice Act 2003 requires a fine to take account of the financial circumstances of the offender; that it must meet in a proportionate way the objectives of punishment, deterrence and removal of gain derived from the offending; and that it must be “sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation.” It then enjoins the court to consider the financial circumstances of the offender – the economic realities – with the result...
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