England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		22nd November 2007

1. MR JUSTICE UNDERHILL: The appellant is a company which assembles and supplies windscreens and other glass products for the automotive industry. It has premises on an industrial estate in Northampton. Following an accident at its premises on 8th September 2006 when a visiting contractor was hit by a fork-lift truck, it was prosecuted by the Health and Safety Executive on a single count of breach of its duty under section 3(1) of the Health and Safety at Work Act 1974 - that is, a duty to conduct its undertaking in such a way to ensure, so far as reasonably practicable, that persons not in its employment were not exposed to risks to their safety whilst working at the premises. The magistrates decided to commit the case for trial to the Crown Court. The company pleaded guilty promptly on receipt of the committal papers, being the first indication which it had been given of the detailed case against it. The matter came before His Honour Judge Alexander QC for sentence in the Northampton Crown Court on 11th September 2007. He imposed a fine of £150,000 and ordered the company to pay costs totalling £9,460. The company appeals against the amounts both of the fine and the order for costs.
2. The way that the accident happened and the nature of the breach that gave rise to it can be summarised as follows.
3. The company's business requires the storage of parts on stillages, which are moved around, as required, by fork-lift trucks. Normally the stillages are kept in a warehouse or similar unit. At the time of the accident, however, there was a shortage of space on the site because of the closure of one of the company's plants. In consequence, only a day or two prior to the accident unused stillages had been stacked on a temporary basis in a canopied area alongside a unit known as Unit B. It was envisaged that this arrangement would last only a couple of weeks.
4. It is a cardinal safety principle in any workplace where vehicles such as fork-lift trucks are used that marked and dedicated walkways should be provided for any pedestrians who have to cross the floor of the workplace, and that a system of working should be designed and operated whereby the vehicles never need to cross those walkways. Such a system was in principle operated at the company's site, and compliance procedures had indeed been improved only a couple of months previously in response to a notice served by the Executive. But when the stillages were moved into the area alongside Unit B no thought was given to ensuring that full segregation between pedestrians and vehicles was preserved. There was in fact regular pedestrian traffic from the car park over the area in question to a door leading into the Unit B, and the area which pedestrians were supposed to walk on was delineated by a yellow line marking off one edge of the area. What happened was that the stillages were stacked so as largely to cover the marked off area and, more specifically, in such a way that in order to access the stillages fork-lift trucks had to cross what was left of the pedestrian route.
5. The victim of the accident, Mr Williams, was an information technology consultant who visited the premises regularly. At about 11.30 am on the day in question he arrived by car. As a matter of procedure, which he was aware of from previous visits, he should have reported first to the reception. This would not have taken him past Unit B. Instead, however, when he got out of his car he decided to enter Unit B directly. This took him through the area where the stillages had now been stacked. As he walked through that area he was hit by a reversing fork-lift truck which was engaged in tidying up the stillages. He suffered a serious fracture of his left leg which has required major surgery and the installation of a metal pin.
6. As we have mentioned, Mr Williams ought as a matter of procedure have on arrival gone first to the reception. He had done so on the previous day and been given an information card which he was supposed to carry with him, described as "AGC Visitor Guidelines". Guideline 1 states in terms: "when in the manufacturing areas always keep to the walkways and be aware of fork-lift truck movements". If Mr Williams had signed in at the reception at the start of his visit, he would also have been issued with a high-visibility jacket. The evidence in fact also was that he would on this particular day have been given an explicit reminder of the importance of not straying from the marked walkways. This is because he had been spotted doing so during his visit on the previous day and the responsible manager intended to raise the point with him: he had indeed already taken the opportunity to give such a reminder to other contractors who had come in earlier in the day. Because Mr Williams bypassed the reception area none of that occurred.
7. The judge detected in the company's submissions in mitigation an implied criticism of Mr Williams for failing to report to reception and not keeping a proper look-out. But, as he correctly observed, whether Mr Williams was to any degree at fault is of limited significance for the purpose of the issue before us. The gist of the offence is the operation of an unsafe system on the day in question; and the situation created by the stacking of stillages outside Unit B, without a system enforcing segregation between vehicles and pedestrians, was plainly unsafe, whatever fault there may or may not have been on the part of Mr Williams. These points are material only because they may have some value in mitigation, in as much as they show that the company's system did attempt to remind visitors of the risk from fork-lift trucks.
8. The company plea of guilty was on a written basis. In accordance with the procedure recommended in R v Friskies Pet Care Ltd [2000] 2 Cr App R(S) 401, BAILII: [2000] EWCA Crim 95, or at least a modified form of that procedure, that basis of plea also set out the aggravating and mitigating features in the case. This was put before the court as an agreed document, though counsel for the Executive and for the company reserved the right to comment on it by way of amplification. The document reads as follows:

"Basis of Plea.

The company pleads guilty on the basis set out in this document, and no other or further basis. The breach of duty was the temporary use of a part of its site for the storage of stillages without putting in place a diverted pedestrian walkway.

Aggravating Features.

1. Injury

2. The issue of fork lift truck movements and pedestrian safety was raised in a letter dated 3 May 2006 from HSE to the company.

Mitigating Features

1. The Company had recently acted to improve its systems of pedestrian controls, particularly in respect in respect of those not in the Company's employment - see AGC's letter of 16 June 2006 to HSE.

2. Post-accident actions.

3. No previous convictions.

4. A good health and safety record.

5. Co-operation with HSE.

6. Guilty plea - the Company relies upon the letter dated 7 June 2007 to HSE."

9. That stated basis fairly and accurately identifies the nature of the breach disclosed by the evidence but we need to say a little more about some particular points.
10. As regards the aggravating features, the fact of the injury to Mr Williams speaks for itself. As to the second item, the letter referred to is the improvement notice to which we have already referred. This required the company to take steps to improve the segregation arrangements which were already in place. The covering letter told the company that the notice was being issued because there was no effective assessment, control or monitoring of safe vehicle movements both inside Units B, C and 16 and outside in the yards and on the private roadway. The letter drew attention to various incidents which had prompted the issue of the notice. One in particular we should draw attention to. It was as follows:

"...in Unit B one fork-lift truck (FLT) was observed stacking stillages close to the primer operation area, where the manoeuvres it was making were regularly taking it over the demarcated pedestrian walkway yellow line and it was reversing very close to the area where employees were working. In the same unit several trucks were using a central route way through the unit where the gap for both trucks and pedestrians was very narrow in places and represented a transport pinch point. The arrangements that have been made for fork-lift truck use in unit B must be revised because of the obvious risk of a conflict between trucks and pedestrians."

The improvement notice served with that letter required the company, among other things, to:

"...set up a system for checking the extent to which vehicle drivers and pedestrians on your site are complying with safe practices (including your own site rules) in relation to risks from vehicle movements on site. The system should include arrangements for checking the behaviour of:

vehicle drivers (including drivers employed by you and other drivers, including visiting drivers); and pedestrians (including your own employees and other pedestrians, including visitors to the site)

The system should address in particular arrangements for checking whether:

drivers and pedestrians are staying within any designated areas and/or avoiding any obvious areas where they are in the path of one another (and if not any reasons for this)..."

It is common ground that that notice was promptly complied with and that the Executive in the letter of June referred to in the "Friskies schedule" had expressed itself satisfied with the measures taken. Its significance for present purposes, however, is that, having received so recent a reminder of the importance of segregation of vehicles and pedestrians, it was the more remiss of the company wholly to overlook it when creating the temporary stillage stacking area.

11. As for the mitigating factors identified in the schedule, point 1 referred to the company's prompt response to the improvement notice to which we have already referred. There is no need for us to say any more about that. Point 2 - post-accident actions - reflects the fact that immediately after the incident effective arrangements were promptly made to create a segregated, and indeed fenced-off, pedestrian walkway through the canopied area to the door to Unit B. There was also a retraining programme undertaken. The next three items - no previous convictions, good health and safety record and co-operation with HSE - speak for themselves: the company had been operating for over 16 years. The guilty plea, again, in principle speaks for itself. However, although, as we have noted, the company did not plead guilty until it had received the committal statements, the judge was critical of the Executive for not supplying those statements at an earlier stage; and the company should be treated as having pleaded guilty at the earliest practical opportunity.
12. It may also be a mitigating factor that, as we have already mentioned, the company, although it had overlooked the particular risk caused by the temporary arrangements which we have described, was alert to the risk to Mr Williams from his failure to observe walkways elsewhere on the site on the previous day, and had been planning to speak to him about it before the accident occurred.
13. The judge in his sentencing remarks set out the facts in some detail and referred to the steps taken by the company after the accident. He then said this:

"But what concerns me is it's all very well when you're sort of caught doing wrong things to immediately say 'Terribly sorry' and put them right. What we have to do is examine what happened in that intervening period, and I have precious little information -- certainly nothing provided by the defendants -- to counteract the view that I expressed during argument, that although they may have been perfectly responsible and proper before and perfectly responsible and proper after, during this period they were thoroughly irresponsible and reckless. I say reckless because they must have (they, the defendants, through the appropriate offices in the company) must have been fully aware of the potential dangers because they had the notice served on them not all that long before and had immediately complied with it.

Such little information as I have is that in terms there was nowhere else to store these things on a temporary measure, but there is no evidence that anybody turned their mind to the risks that that might produce. No risk assessment; no-one saying, when the forklift truck driver is going to be moving these particular silages in the area where pedestrians walk, 'We must put up a barrier that says 'No entry on Foot' and/or big warning signs' (temporary of course, because it was a temporary matter). And I think what makes this more serious than Mr Kimblin on behalf of the defendants acknowledges in this argument is that they were in strict notice of his problem, having had, as I've said, notice about it earlier in the year and doing the improvements."

14. While the particular points made by the judge in that passage are entirely reasonable, and indeed spell out clearly the nature of the company's breach and the aggravating feature identified on the "Friskies schedule", Mr Kimblin, who appears before us for the company as he did before the judge, takes exception to the finding that the company was "thoroughly reckless". We think that he is entitled to do so. The term "reckless" connotes a particularly high level of culpability which we do not believe that the facts of the present case disclose. The company was of course at fault in installing the stillages without giving thought to the need for segregation, and that fault was aggravated in the ways that the judge referred to. But we nevertheless do not believe that carelessness of that character deserves the description "reckless".
15. Having made that finding, the judge went on to consider what level of fine was appropriate "to reflect what I indicated to be a reckless disregard of the company's duties". He observed that he had been referred to a number of authorities but that they gave little helpful guidance. He then said:

"I have to decide what is the appropriate level of fine. I totally disagree that it is the level within the jurisdiction of a summary court. My view is that the fine has to be such not merely to punish these defendants but to show them and other potential defendants that they cannot, even if they are good responsible employer, for whatever reasons, because it is favourable to their own business operation, ignore that, even if it's on a temporary basis, and in my judgment, the appropriate fine would be £150,000."

16. Mr Kimblin submits, first, that the fine was manifestly excessive, having regard to the level of penalties commonly awarded for cases of this kind; secondly, that the finding of recklessness was unjustified; and thirdly, that the judge had failed to follow the guidance given by this Court in R v F Howe and Sons Ltd [1999] 2 Cr App R(S) 37, BAILII: [1998] EWCA Crim 3531, as to the factors to be taken into account in setting the level of fine in cases of this kind, and in particular that he had given little or no weight to the mitigating circumstances identified in the schedule, all of which are referred to in Howe.
17. We do not think it is necessary to address each of Mr Kimblin's submissions separately. To a considerable extent they are interdependent. We have already made clear our view that the judge overstated the level of culpability shown on the facts here. There was a serious failure of risk assessment and planning, aggravated by the factors identified in the schedule; but this was not a case meriting a penalty at or near the top of the observable in the authorities scale. This was a one-off failure to build into temporary arrangements safety procedures which were properly observed in the company's normal arrangements. There is no suggestion here of a culture of disregarding health and safety or of ignoring safety procedures in order to cut costs.
18. As to what the normal scale of penalties is, it is right that this Court has consistently declined to set any kind of tariff because of the very wide variety of circumstances attending prosecutions of this kind. Nevertheless, levels of fine should not be wholly arbitrary, and it is possible by looking at a range of recent cases in this Court (to which we were helpfully referred) to get a broad feel for the levels of fine imposed in cases of different levels of gravity. It is important in doing so to bear in mind that in some cases the court would be influenced by considerations of affordability or means, particularly where the defendant is a small business or is in the public sector. There are no such considerations here, since the company put no material before the judge about its profitability or its assets. But, even bearing that caveat in mind, it seems to us that a fine of £150,000 - all the more so in a case where the company has pleaded guilty at the earliest opportunity - is quite disproportionate to the level of culpability in this case, including in that assessment both the aggravating and the mitigating circumstances. In our view, the right level of fine in the present case is a fine of £60,000, and we allow the appeal to that extent.
19. Mr Kimblin also sought to appeal against the order for costs. The Executive asked for costs below at a level higher than that which was eventually awarded. The judge had indicated that he was willing to award only two-thirds of the amount sought, which yields the total of £9,460 to which we have earlier referred, on account of the conduct of the Executive in not supplying statements at an earlier stage. But he did not apparently make any reduction to the 100 per cent figure claimed by the Executive to which he applied that discount. Mr Kimblin submits that that figure, and in particular the figure of some £9,000 for solicitors' costs for bringing the matter from the Magistrates' Court to the Crown Court, was wholly excessive and should have been reduced by the judge. We are bound to say that the figures claimed do indeed seem to us surprisingly high; but in the end we have not been satisfied that there is anything in them so manifestly excessive as to enable us to say that the judge was wrong to take the Executive's figure as the basis to which he applied his discount. We are accordingly not prepared to allow the appeal on the issue of costs.
(Submissions followed)
20. LORD JUSTICE GAGE: We make no order out of Central Funds. We are reminded that we need to specify a time to pay, I do not know what the judge said, but 14 days seems to be reasonable.
21. MR KIMBLIN: So be it.