England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Wednesday 26th February 2003

Mr Justice Davis:

1. On the 25^th May 2000 a self-employed roof sheeter called Simon Pickering aged 20 was working on the roof of commercial premises at Foss Island Road, York. He was engaged in dragging a top sheet to fix over a roof stack, moving backwards for that purpose. He inadvertently, while moving backwards, stepped on to a roof light. It gave way and he fell through it onto a concrete floor some six metres below. He subsequently died from his injuries.
2. In due course criminal proceedings were commenced on the 23rd November 2001 by the Health and Safety Executive under the provisions of the Health and Safety at Work Act 1974. There were summonses against two defendants. One was a well established and well respected building company called Totty Building Services Limited ("Totty"). That company had been employed by MFI as main contractor to undertake building restoration and remedial works at the site in question, which was a site formally owned by the B&Q chain, with a view to MFI moving into occupation. The other defendant was Yorkshire Sheeting and Insulation Services Limited, the appellant, also a well established and well respected company, specialising in roofing work. The appellant is of financial substance. In 1999 it had a turnover in excess of £6 million and net profits of around £105,000; and in 2000 it had a turnover in excess of £8.7 million and net profits of around £388,000. The appellant had been retained as sub-contractor by Totty to deal with the sheeting of the roof of the premises in question; the work in question also included the replacement of a number of roof lights (that is to say in the form of, as it were, sky lights).
3. The summons against the appellant charged it with the following offence (reflecting the provisions of Section 3 (1) of the 1974 Act) in these terms:

"You being an employer subject to the Health and Safety at Work Act 1974 did contravene section 3 (1) of the said Act in that with regard to the partial re-sheeting of the roof of the premises your undertaking was not conducted in such a way as to ensure, so far as reasonably practical, the safety of persons not in your direct employment, namely the sheeters engaged to carry out the work who were exposed to the risk of falls through the roof….."

The summons against Totty made similar allegations.

4. The matter came before the York Magistrates on the 14^th February 2002. Both defendants pleaded guilty. They were committed to the Crown Court for sentence. At the magistrates court the prosecution tendered a summary of facts and list of aggravating features; and the appellant tendered a schedule of mitigating features. This procedure followed the recommendations made in the case of Friskies Pet Care (UK Limited) [2000] 2 Crim App Rep (S) 401, BAILII: [2000] EWCA Crim 95.
5. On the 10^th May 2002 at the Crown Court at York the appellant was fined the sum of £100,000 and was also ordered to pay a proportion of the total costs, which proportion was in due course calculated as being in a sum of some £8,950. Totty was on the same occasion fined £10,000 and ordered to pay a significantly lesser proportion as a contribution towards the total costs. Against that sentence the appellant now appeals by leave of the single judge.
6. The background facts, in a little more detail, are these. On acquisition of the site in question from B&Q, MFI employed Totty as its main contractor. Totty in turn engaged the appellant as sub-contractor in respect of the roofing works that were required. A company called Roscoe Capita was appointed as planning supervisor. The works contemplated were scheduled to start in May 2000 and were estimated as likely to last twenty weeks in total. Such works included the replacement of the metal top sheets on the roof and replacement of the existing roof lights (about 100 in number) in addition. It was agreed that scaffolding edge protection would be provided around the building, with access to the roof by a pole ladder and with materials being hoisted up by crane and lowered onto the roof.
7. For the purposes of these works, and as was requisite, a method statement and risk assessment were prepared by the appellant. They were submitted to Totty and approved by Totty. The method statement which was dated 18^th May 2000 contemplated a start date in the week commencing 22^nd May 2000. In paragraph 6 of the method statement it was provided under the heading "Installation of safety netting" as follows:

"A specialist sub-contractor will erect the safety nets to the entire warehouse area.

A method statement from the contractor will be put forward prior to their commencement on site"

It may be noted that no provision of any kind was included for the covering of roof lights. So far as the risk assessment was concerned, which was also dated the 18^th May 2000, that (in the section devoted to an evaluation of risks relating to falling from a roof) gave scores of two by way of risk rating to the potential severity of any fall and two to the potential risk of frequency for any fall: both scores indicating a low level of risk. The overall code rating was put at "L" again indicating an assessment of the risk being low. Under the heading "Control measures required during construction phrase" there was provided amongst other things the following: "Safety nets prevent falls to ground". What was contemplated was that nets would be placed inside the premises under the roof area, to break any falls that might occur from the roof.

8. The roof sheeters arrived for work on Monday 22^nd May 2000. They were self-employed, working as gangs under a principal called Darryn Walker who was himself self-employed. (Darryn Walker is in fact the son of Paul Walker, a supervisor in the employment of the appellant.) Darryn Walker's services were retained by the appellant by a written agreement dated the 31^st March 1997 whereby he was appointed as an independent contractor to the company. The duties of Darryn Walker, under the Agreement, were to extend to such tasks as roof sheeting and cladding as should be selected by the appellant. It was provided, in the Agreement, that he should carry out such tasks in an efficient and competent manner in accordance with good working practices and that he should at all times comply with all requisite or recognised safety procedures. In fact, as from 1997 Darryn Walker worked exclusively, it would appear, for the appellant. In practice he would take instructions from the appellant's employees as to safety matters; and it was also the appellant who would take out the relevant insurances for relevant projects. Further the usual practice was for the appellant to make out the wage cheques for the individual gangers retained by Darryn Walker; the appellant would provide such cheques to Darryn Walker who would then pass them on to the individual gangers concerned.
9. By Monday 22^nd May 2000, instructions had been given to cause the contractors to put in safety nets under the roof. Unfortunately it seemed that vandals had been busy over the weekend. The scissor lifts, needed to take the nets into position, were out of action; so nothing could be done until those lifts were repaired. Nets were not in place on the morning of Monday 22^nd May 2000 in consequence. There was during the course of that day a discussion between Mr Paul Walker and Mr Heath, a director of the appellant, as to safety requirements relating to the roofing works: The discussion included reference to the possible need to demarcate a safe area of working on the roof by cones and bunting, depending on the area of safety netting in place underneath. By Wednesday 24^th May 2000, one of the scissor lifts had been repaired and some netting had been put in place; but it only extended to the roof area of a few of the rear bays in the premises. On Wednesday night both lifts should have been operable. However, overnight the charger from the battery for one of the lifts was somehow removed; so on Thursday morning that particular lift could not be used to continue with the netting work. As at the morning of Thursday 25^th May 2000, only seven of the relevant bays at the rear of the premises – 14, 13, 12, 11, 10, 9 and 8 – had been netted. The remainder had not.
10. In the meantime some of the gangers had, from Tuesday 23^rd May 2000, been undertaking preliminary works on the roof. Totty's safety officer was a Mr Quealey. He visited the site on Wednesday 24^th May 2000. He thereupon expressed concern at the absence of complete netting: although the roofers were at that stage confining their activities to the area of the rear bays where by now there was netting. He was also concerned that some roof lights had been removed and the resulting holes were totally uncovered. Mr Quealey was also concerned, in any event, because the fragility of the roof lights had already been shown on a previous occasion by an employee simply standing, by way of demonstration, on one already removed: which immediately shattered. Darryn Walker was in fact the individual to whom Mr Quealey spoke at this stage. Darryn Walker initially took the position that the netting that was by then in place would suffice. However he then agreed with Mr Quealey that the roof lights themselves should be covered in the working area notwithstanding that there was netting present in that working area (namely the rear bays). Darryn Walker then spoke on the telephone to his father, Mr Paul Walker, to discuss this and this was agreed. The roof lights in the working area were then covered with old roofing sheeting.
11. Mr Quealey then went to discuss his concerns with the site manager, Mr Ellis. Mr Ellis was an experienced agency site manager temporarily retained by Totty because its own regular site manager in its employment was away on holiday at this time. It was said by Mr Quealey in his witness statement that the conversations with Mr Ellis extended to demarcation of the roof; that is to say to marking off the netted areas from the unnetted areas by a form of demarcation on top of the roof involving cones and bunting; and that Mr Ellis was left to ensure that no one worked on the areas of the roof where there was no underlying netting. According to Mr Ellis, he had previously discussed the general situation with Mr Paul Walker, the supervisor employed by the appellant, who had (he said) agreed to work on only five of the rear bays (14 to 10) leaving a safety margin, as it were, of two bays under which there was to be netting. However no steps were in fact taken to effect any demarcation on the roof whether by any cones or bunting or by the erection of any barrier or otherwise.
12. There was also some evidence to suggest that Mr Howard (Totty's construction manager) had on Wednesday 24^th May 2000 asked Mr Ellis to ensure that he (Mr Ellis) had done everything ordered by Mr Quealey. Further there was some evidence to suggest that express instructions had previously been given to the gangers working on the roof that they were not to work outside the area under which there was netting, and to confine themselves to working on certain of the rear bays, under which there was netting.
13. The position thus, as on the morning of Thursday 25^th May 2000, was that certain of the bays had netting underneath them. Further those roof lights within the working area had by then been covered over. But the netting did not extend to the entirety of the roof area nor had the roof lights outside the immediate working area been covered. Further no demarcation of any kind had been undertaken on the roof marking off the working areas (under which there was netting) from the non-working areas (under which there was no netting).
14. Simon Pickering had previously been working as a ganger for Darryn Walker for some four months. He had some experience as a roofer, therefore, but not a great deal. On 25^th May 2000 he was, at around 11am, working in the vicinity of the netted area, but near to the area where the roof lights were in fact left uncovered (and therefore where there was no netting underneath) and where there was no demarcation by way of cones or bunting or anything else. In the course of dragging sheeting backwards, Mr Pickering stepped through one of the uncovered roof lights – as it happened, the one in advance of where the netting stopped. The netting in fact stopped one metre short of it. In the result the death occurred. Subsequently, it might be added, the job was completed after full netting of the entire roof area had been effected and after the entirety of the roof lights on the roof had been covered.
15. The essential complaint of the prosecution was against a background where, in the construction industry, a fall from a height of over two metres is the most common cause of fatal accidents; it is said accounting alone for some 50% of all fatal accidents in the industry. Further, of these the most common cause is by falls through fragile roof lights. The risks thus were well known in the industry. The complaints were, in essence, as follows:

(1) The method statement and risk statement were lacking in the requisite detail; and in particular were wrong to assess the risk as "low" with regard to falls. Further, they should have stipulated that no access to the roof should have been permitted until the roof area was completely safety netted and until all roof lights in the vicinity of the working area as well as in the actual working area had been covered.

(2) To the extent that only part of the roof was netted there should have been a physical demarcation (giving a safety margin of at least two metres) marking off the area which was netted from that which was not netted.

(3) All roof lights both within the working area and in the vicinity of the working area should have been covered.

(4) Strict instructions should have been given (and strict compliance with such instructions ensured) that uncovered roof lights outside the netted area should not be approached and that no work whatsoever should be done in such areas.

16. Mr Fernyhough QC, appearing for the appellant on the appeal (although he did not appear before the Judge below), conceded that the risk and method assessment were at fault – in particular in assessing the risk as low and placing over much reliance on netting and in failing to make any provision for the covering of roof lights at all, whether in the working area or in the vicinity of the working area. Mr Fernyhough also accepts that there was culpable fault in the failure to cause netting to be erected under the entirety of the roof area and the failure to cause the relevant roof lights to be covered. He further accepts that, to the extent that the roof lights had not been covered and to the extent that complete netting had not been undertaken, there at least should have been appropriate demarcation markings on the roof itself.
17. There was considerable debate before the Judge as to the relevant responsibility of those involved. The prosecution expressly, and understandably, took no position on that. Some of the arguments however advanced on behalf of the appellant and on behalf of Totty seem, in some respects, to have been more appropriate perhaps to what one might expect in arguments relating to contribution in civil proceedings. At all events in the course of his sentencing remarks the Judge said this:

"He [Simon Pickering] was an employee of Yorkshire Sheeting and Insulation Services. They bore the primary responsibility for the safety of their employees and I conclude that that defendant as the employers of the deceased and as the contractor charged with the job carried the lion's share of the blame for failing so far as reasonably practical to ensure Mr Pickering's safety, and if this were a civil case where, as between the two defendants, responsibility were to be apportioned as percentages I would assess the relative moral culpability as 90% to Yorkshire Sheeting and Insulation Services and 10% to Totty's. Turning to each defendant in turn I propose to set out what seem to me to be their failings and also their mitigation. So far as Yorkshire Sheeting is concerned their failings in my view are manifest, conspicuous and cumulative. A sure recipe for disaster………

No instructions were issued apparently that the roof lights should not be approached until the whole area below them was netted. No-one made sure that these things would be done. No one made sure that the sheeters were instructed not to approach the area of roof which had not been netted under. That is why I say that these failings were manifest, conspicuous and cumulative. "

18. On behalf of the appellant, Mr Fernyhough submits that the Judge erred in his approach; drew conclusions that were not justified from the evidence before him; and in the result imposed a fine which was manifestly excessive.
19. Mr Fernyhough drew attention to the written statement of aggravating factors and of mitigating factors, which formed the basis of the plea. By reference to the guidelines set out in the case of F Howe & Son (Engineers Limited) [1999] 2 ALL ER 249, he submits that there was here but one aggravating factor; and that was the fact that a death had occurred. Clearly a penalty that is to be imposed in such circumstances must, to some extent, reflect public concern at the unnecessary loss of life. But that, as Mr Fernyhough pointed out, was the only aggravating factor. On the other hand, there was here conspicuously absent any suggestion that the appellant had been motivated by any desire to engage in cost cutting exercises or anything of the kind. On the contrary this was, as was accepted, a reputable company, with an excellent – even if not entirely immaculate – safety record and which had never before been prosecuted. It had well-established safety and training procedures. It had experienced employees and retained experienced contractors. It had concerned itself with the procedures at the time of this particular project (albeit, and admittedly, in the event inadequately). Further, since the tragedy it had co-operated in every way with the enquiry as to what had gone wrong; had sought further guidance as to its own procedures and as to safe working methods from the Heath and Safety Executive; and had commissioned an independent audit of its safety procedures. Further, Mr Fernyhough submitted that the failure arose out of events occurring over a matter of a day or so (after the original plan for netting the entire roof had been frustrated by the acts of vandals) and had not been a consequence of a sustained course of unacceptable conduct. Furthermore, as was stressed, the appellant had admitted responsibility at the outset and had pleaded guilty at the earliest possible moment.
20. Mr Fernyhough criticised the sentencing remarks in that they seem to adopt as a starting point what was said to be the fact that Mr Pickering was an employee of the appellant. As Mr Fernyhough pointed out, that was not correct. Rather Mr Pickering's services had been retained by Darryn Walker and Darryn Walker was himself an independent contractor retained by the appellant. (Indeed it was just because of that that the charge doubtless was brought by reference to section 3 (1) of the 1974 Act.) While Mr Fernyhough's submission is strictly correct on this particular point and he is entitled to say that the Judge had, on the face of it, adopted a wrong factual starting point we doubt if this, in itself, is a point of much moment. The practical reality was that the appellant had been retained as a specialist roofing contractor on the project and it must be the case that it had to take a significant principal share of the blame for what happened – the more so when, evidently, Darryn Walker and the gangers were looking to the appellant for instructions as to roofing safety procedures.
21. Further, submitted Mr Fernyhough, the Judge had been in error in saying that no instructions had been issued that the roof lights should not be approached in the area under which there was no netting. As he pointed out, there was some evidence that instructions had been given that the roofers should not approach the areas which had not been netted, and should only work on certain of the rear bays. Yet further, he submitted, in the course of his remarks the Judge had, by way of criticism of the appellant, stated that the appellant had agreed to cover the roof lights but failed to do so. This was erroneous, since the evidence was that the appellant had agreed to cover the lights in the working area: and that it did.
22. Mr Fernyhough went on to criticise the Judge for seeking to adopt a precise percentage approach to the relative culpability as between the appellant and Totty of 90% to 10%. Mr Fernyhough said that, in the context of these criminal proceedings, it was neither possible nor appropriate to attribute percentages in that way given the number of corporations and the number of individuals involved. He went on to say that it would appear that the Judge had in reality decided on an appropriate total figure by way of fine and then had decided to allocate it in the way that he did. (It might be observed that, even then, although the Judge made an allocation 90% to 10%, the ultimate fines as imposed on the appellant on the one hand and Totty on the other hand did not in fact precisely correspond to that particular percentage allocation). Further, in so far as the Judge criticised the failings of the appellant as "manifest, conspicuous and cumulative" Mr Fernyhough submitted that was unfair and not justified by the evidence. Mr Fernyhough readily acknowledged –consistently with the plea of guilty – that the appellant was seriously at fault and was culpable to a significant degree. But he submitted that the culpability could not be said to be at the level of description ascribed to it by the Judge. In particular he submitted that the Judge had failed to have sufficient regard to the faults of Totty and of others involved, such as Mr Ellis. Indeed, Mr Fernyhough complained that in his sentencing remarks with regard to Totty the Judge had said it had been "let down" by the agency site manager: but the Judge allowed to the appellant no such degree of mitigation by reference to the conduct of the individuals who were not in fact employed by the appellant.
23. We think that there is force in these submissions, taken overall. We think, that the Judge's statement of the facts was (in the respects indicated) wrong. Further the approach adopted by the Judge operated somewhat to mask the true nature of the sentencing exercise. That was to assess the degree of culpability and criminality on the part of the appellant by reference to the offence charged and its failure to take steps to ensure, so far as reasonably practical, the safety of the roofers. The Judge placed too much emphasis on seeking to apportion overall liability (by reference to a projected total fine) between the appellant on the one hand and Totty on the other hand on a percentage basis and not enough on assessing the appellant's own culpability in respect of the offence as charged. This, we think, caused the Judge, as Mr Fernyhough submitted, not to make the appropriate assessment of the personal culpability of the appellant; the essential task being to assess how far short of the standard required by the 1974 Act the appellant by its acts and omissions fell and the extent of the criminal default thereby involved.
24. Mr Fernyhough also referred the court to a number of authorities, including Rimac Ltd [2000] 1 Crim App Rep (s) 168, BAILII: [1999] EWCA Crim 2262 where a fine of £60,000 (and costs of £9,273) was imposed on a company in respect of an employee's fall through a ceiling. However, only limited guidance can be obtained from the citation of such authorities; as explained in Howe at p254 b, it is impossible to lay down a tariff in cases of this kind: each case must be decided by reference to its own circumstances.
25. In the judgment of this court, considering the submissions advanced and the materials deployed, the fine imposed in this particular case was excessive. As has been pointed out, save for the tragic death, none of the aggravating factors and all of the mitigating factors as identified in Howe were present. This was a respectable and responsible company which, on this occasion, participated in a failure to take the reasonable and practical steps needed to ensure the safety of those working on the roof. There is no doubt that this was a serious default; not least because the problem (which gave rise to a clear and foreseeable risk) had already been identified before Thursday 25^th May 2000. There was a serious default in failing properly to address the identified problem by arranging for the appropriate roof nettings, by (in particular) arranging for the appropriate covering of all the relevant roof lights (including, at least, in the vicinity of the working area) and by arranging, as appropriate, in the interim for the necessary demarcation on the roof. There was also the failure to ensure that roofers did not go outside the designated working area. It is the case however that the evidence suggests that the failure was to a significant extent due to a lack of liaison between all those involved. We do think, with all respect to the Judge, that his rather highly charged statement that the appellant's failings were "manifest, conspicuous and cumulative" was inapposite. It seems to us that such language can only appropriately be deployed, if at all, with regard to the failings in this particular case if one has regard to the totality of the failings of all those – corporations and individuals – involved and not simply the appellant itself.
26. We are less moved by Mr Fernyhough's submission that the fine imposed on the appellant was disproportionate to that imposed on Totty. Totty, of course, had its own responsibilities (and after all it was the main contractor);but we take the view that the principal responsibility (by reference to the criminal proceedings) was that of the appellant which was the retained specialist roofing contractor. In any event, even if the fine imposed on Totty could be said to be unduly lenient that does not in itself, in the circumstances, give rise to a justifiable claim that the fine otherwise appropriately imposed on the appellant should itself also become unduly lenient.
27. Considering all the circumstances we think that a substantial fine was indeed required: as was the Judge's own view. Nevertheless, as already stated, we take the view that a fine of £100,000 was too much and was excessive. Having regard to the mitigating factors here present and having regard to the culpability on the part of the appellant and given the facts of this case, we take the view that a fine in the region of £60,000 would have been appropriate. However the Judge also, in respect of costs, had stated that costs were to be apportioned in the same proportion as the fines had been between the appellant and Totty (thus adopting the same rigidly proportionate approach to his assessment). Retaining, as a matter of practicality, the order for costs as made by the Judge in terms of its quantum, we adjust the fine, in the round, to £55,000.
28. At the conclusion of the hearing on the afternoon of 30^th January 2003 after hearing the submissions of Mr Fernyhough and of Mr Myerson (who appeared for the respondent) the court announced the conclusion which it had reached and indicated that it would give its reasons later. These are those reasons, which represent the judgment of the court. Accordingly there is to be substituted for the fine of £100,000 as ordered by the Judge a fine of £55,000. The order as to costs made by the Judge stands. To the extent indicated this appeal is allowed.