England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 21st February 2008

1. LORD JUSTICE GAGE: In April 2007 this appellant, together with a director of the company, faced an indictment containing six counts. The company, John Pointon & Sons Ltd, whom we shall refer thereafter to as "the company" was acquitted of count 1, manslaughter, as was a Director, Carl John Pointon, who faced only that count on the indictment. There were five other counts on the indictment, all alleging offences contrary to the Health and Safety at Work Act 1974 and associated regulations made under the Act. Those counts were: count 2, failing to ensure the safety of employees, contrary to section 2(1) and section 33(1) of the Health and Safety at Work Act; count 3, failing to provide a safe system for confined space working, contrary to Regulation 4(2) of the Confined Spaces Regulations 1997 and section 33(1) of the Act; count 4, failing to provide suitable and sufficient arrangements for rescue from a confined space, contrary to Regulation 5(1) of the Confined Spaces Regulations 1997 and the Health and Safety Act and count 6, failing adequately to assess the risks to the health and safety of employees and other affected by its undertaking, contrary to Regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 and the Health and Safety at Work Act 1974.
2. The company pleaded guilty on rearraignment, on 11th April 2006, to counts 2 and 6. The trial proceeded on counts 1 and counts 3 and 4. On 14th May 2007 the company was convicted of counts 3 and 4 and, as we have said, acquitted, as was the director, of count 1, the offence of manslaughter.
3. The matter was adjourned for sentence and on 24th July 2007 the judge fined the company a total of £620,000. That was made up as follows: count 2, £480,000; count 3, £50,000; count 4, £50,000 and count 6, £40,000. The judge achieved this by taking a sum of £600,000 in respect of count 2, allowing for guilty plea and deducting 20%, he achieved £480,000, to which he added the other sums in respect of the three other counts. The company appeals against those fines by leave of the Single Judge.
4. The facts, so far as material, are as follows. The company is a private limited company, employing 127 staff. Carl Pointon, a son of the founder, was a production and technical director. The company operates from its factory at Cheddleton in Staffordshire. At the relevant time Mr Pointon was on duty, as was Mr Terry Roe, a general manager, Tony Tilstone, a training officer, Glynn Thompson, an electrician and Ivan Torr, a self-employed contractor.
5. The offences arose out of a tragic fatal accident which occurred on Sunday 15th August 2004. The background is as follows. The company deals with the rendering of animal material such as carcasses and offal. It receives animal by-products from slaughter houses and dead zoo animals which are treated to break down the materials so that some of the resulting by-products can be sold on. The animal material was brought to the factory in lorries. Originally the products were tipped onto the floor, sorted and placed on one of three open lines for rendering.
6. In March 2004 a fourth line was opened. This was a "state of the art" closed line, and known as "line 4". Products for line 4 were tipped straight from lorries directly into two hoppers which fed the line. The products were then moved along the line by a series of screws. The raw material is crushed and cooked at very high temperatures. Line 4, after its installation, was not infrequently subject to problems caused by blockages within the line. These were normally caused by large plastic bins, known as dolavs which arrived in the waste and caused obstructions. There was no set procedure for dealing with the problem; the solution depended upon the number of staff working at the time.
7. Gases and odours produced on line floor are extracted from the material via ducting from two systems. The main system took foul air and vapour from the cookers, presses and mills, while the second was primarily designed to provide air to the burners contained in the burning off material. No direct extraction was taken from the back screw area or other screw areas.
8. As we have already indicated, a fatal accident occurred at the company's premises on 15th August 2004. Overnight nine loads of raw materials had been delivered and tipped directly into the two hoppers on line 4. A dolav blocked the line and restricted the material passing through the hopper. The line was shut down and Mr Rowe and Mr Torr informed. Mr Carl Pointon arrived at the premises at 9.30 in the morning. Mr Torr also notified Mr Tilstone, who attended at 10.21 on the morning. Mr Torr attempted to clear the line using a JCB arm, at which point Mr Thompson arrived at the premises. There was an attempt to solve the problem by reversing the screws but that failed. When these procedures failed one of the methods for removing the dolavs devised by the work force was put into operation. It had apparently been used previously. In short, it involved a man being lowered on a sling into the back screw housing area. The system was devised without any planning, risk assessment, training or supervision by the company. It was this system which was put into operation on that occasion. Mr Torr was lowered into the back screw area of one of the hoppers on a sling, attached to a crane operated by Mr Thompson. Mr Torr collapsed inside the back screw area. Mr Thompson called for help on his personal radio. Mr Pointon had returned to the factory at this point and he operated the crane while Mr Thompson was lowered into the back screw area in an attempt to rescue Mr Torr. Mr Thompson also collapsed. Mr Pointon subsequently summoned the fire and rescue service and a ambulance. A gas monitor was used by the rescue services to establish the oxygen level and potentially dangerous gases. This revealed the presence of carbon monoxide and hydrogen sulphide. The two men were then removed after a lengthy recovery operation.
9. Tragically Mr Thompson died later without regaining consciousness. A postmortem examination concluded that death was caused by hypoxic brain damage. Continued exposure to an environment low in breathable oxygen or rich in toxic gases can cause irreversible brain damage. He had also suffered a cardiac arrest. The pathologist was of the opinion that, even if he had been extracted from the hopper more quickly, he might have already have suffered significant, possibly fatal, brain damage. Mr Torr was hospitalised and eventually discharged on 21st August 2005. He appeared to have suffered a memory lapse of the incident.

Following the incident an investigation was carried out by the Health and Safety Executive and the police. It became apparent that the company did not have any established health and safety procedure. There was very little input from the management in respect of methods of work and no training in respect of health and safety or confined space working. There was no set procedure for dealing with blockages and the company had in the past failed to record and report accidents to the health and safety officers.

Officers of the Health and Safety Executive, working with the police, subsequently gave evidence at the trial in respect of the major hazard for employees and on the day in question including toxic gases.

The judge in his sentencing remarks described the dangers inherent in the procedure adopted on this occasion as follows:

"This system had its own inherent and obvious dangers, not least that all of the men involved were working at considerable height in a slippery environment, and if the third man slipped from the sling and lost his grip on the hook, he would fall into the back screw area, and depending on how much material was in the back screw at the time, either on to the back screw mechanism itself, or into the animal waste inside that screw area. The potential for injury, albeit not of the kind befell Mr Thompson, was therefore both substantial and obvious. The potential for the need for rescue in these circumstances is similarly obvious and substantial. It has to be borne in mind that rescue from this area was further complicated by the fact that animal waste material is slippery, and also makes slippery any surface or solid item with which it comes into contact. Also inherent in this situation was another deadly danger, that of toxic gases given off by the biological action within the animal waste. During the trial, much evidence was given about the gases which are generated by this material and the effects of such gases. Two, in particular, were identified for their toxicity: hydrogen sulphide and carbon dioxide. Hydrogen sulphide is highly toxic even in a small quality. It interferes with the body's ability to use oxygen, and in great quantity it will affect consciousness. Carbon dioxide is less toxic but its presence reduces the amount of oxygen in the atmosphere."

10. The company had received complaints about offensive odours from local residents. No line assessments had been carried out into line 4 and there had been a failure to identify the potential risks of working in confined spaces. Of this, the judge said in his sentencing remarks:

"Thus, in its operation of line 4, and in particular, knowingly allowing its employees to enter the back screw housing in order to remove obstructions in the way that I have just described, the company in fact, subjected them to a number of dangers [we interpolate employees]: from falling, from trapping, from unsafe levels of dangerous gas and from a difficult and hazardous rescue. Entry at the back screw housing was, on any view, a high-risk activity, which arose out of the company's failure so far as was reasonably practicable to ensure their safety, to assess risks to their health and safety, to provide a safe system for confined space working, and to provide suitable and sufficient arrangements for rescue.

These failures, taken both individually and together, were serious derelictions of the company's duty and fell far short of what they could and should have reasonably have done."

11. Mr Carl Pointon, having been arrested for manslaughter, was interviewed on 16th November 2005. At that interview his solicitor read out a prepared statement which concluded by Mr Pointon saying that he did not know of any problems of toxic gases. Had he been aware he would not have allowed workers to enter the areas that they did. Thereafter he declined to answer questions at a later interviews. As we have said, the company pleaded guilty on rearraignment to count 2 and count 4 and was convicted of counts 3 and count 6.
12. The judge in his sentencing remarks, summarised all the relevant aggravating features and all the appropriate mitigating factors. The aggravating features are, first, the failure of the company's health and safety procedures which resulted in the death of an employee who was at the time attempting to rescue another employee. Secondly, the health of the rescued man was seriously compromised, although ultimately he made a complete recovery. Thirdly, at the time of the accident the company's attitude to health and safety was careless and irresponsible.
13. So far as the mitigating factors are concerned, these can be summarised from the sentencing remarks as follows: firstly, the company pleaded guilty to two of the charges, including the most serious one, count 2. They had been indicated at a hearing before the trial. Secondly, the issues on the two charges which were fought were narrow, and, on the fundamental points, were not contested. Thirdly, although there had been previous incidents the company had no previous health and safety conviction. Fourthly, the company, through its directors, had made a clear expression of deep and genuine remorse. Fifthly, since the incident the company had taken very considerable steps to ensure proper health and safety standards across the whole of its operation. Sixthly, steps had been taken to ameliorate effects which the plant and its processes have on the environment.
14. Having outlined these matters the judge referred to all the relevant authorities of this Court and some decisions at first instance. He described the case as a "serious one" and the breaches of duty as "substantial". He accepted that the breaches were not motivated by a desire to put profit before safety. However, he described the degree of risk as "very high" and the potential for injury or death "considerable" and one which persisted for a significant period of time. None of these findings or observations by the judge are challenged by the appellant. We pay tribute to the care with which the judge dealt with this matter in his sentencing remarks.
15. Nor does the company seek to argue that it cannot afford to pay this fine. It is now a medium sized private company, whose business is profitable and expanding. We are told that for the year ending 31st July 2007 the company had a gross profit of just over £11.5 million. Its administrative expenses for that year were nearly £10 million and pre-tax profits £1.1 million. For the year ending 31st July 2006, draft figures show gross profits of around £18 million, with a pre-tax profit of about £4.5 million.
16. In grounds of appeal, and in the skeleton argument and in oral submission today Mr Matthews makes three principal arguments. Firstly, he submits it was wrong in principle for the judge to impose separate penalties on each count. He ought to have imposed one fine on count 2, the most serious count, namely the breach of a general duty owed to the company's employees. It is submitted no separate penalty should have been imposed in respect of the other counts.
17. Specific submissions on these matter are that, so far as counts 3 and 6 are concerned, it is not appropriate to make a separate penalty in respect of each of them; count 6 is subsumed into count 3.
18. The principal submission, however, is that the starting point for the fine of £600,000 which the judge took was manifestly excessive. It is submitted that the authorities demonstrate that a fine of a lesser sum should have been imposed. The third submission is that the total cost figure of £143,000, of which the judge ordered the company to pay £80,000 was, in all the circumstances, excessive, bearing in mind that the company had pleaded guilty to the main offence and that the issues in relation to the other counts were narrow. So far as the principal count of manslaughter is concerned, the company was acquitted. Fourthly, it is submitted in the skeleton argument that the judge failed to give sufficient weight to mitigation.
19. As we have already indicated, the judge in assessing the fine took as a starting point, in respect of count 1, a figure of £600,000, which he discounted by 20 per cent to arrive at the figure in respect of that count of £480,000.
20. The sentencing exercise in cases such as these is never easy. The guidelines given to judges are in the most general form, and for obvious reasons cannot be refined. There is no tariff. The judge at first instance had, therefore, in this case, a difficult task. We have no doubt that he was entitled to fine the company on each count. It was not wrong in principle to fine the company on this basis. That is not to say that it is wrong for the judge to pass one fine for the most serious offence and make no separate penalty for other counts. Whichever course a judge adopts it will be the totality of the fine which must not be manifestly excessive. It follows that where separate fines are passed, the judge must be careful to ensure that there is no double counting and that the totality is not excessive.
21. In this case we do not accept that the judge failed to take into account the mitigation put forward on behalf of the company. As we have already said, he specifically referred to the mitigating factors in his sentencing remarks. In our judgment, the total figure at which he arrived was one which reflects his view as to the company's culpability after balancing the aggravating and mitigating factors. However, the main question for this Court today is whether or not the total was manifestly excessive.
22. We accept, as the judge did, that line 4 was put in by a very reputable company. It is true that the company which installed the line did not alert the company to the problems which might be caused by blockages. But when blockages did occur, the method adopted to clear them was obviously very dangerous, yet the company failed to take adequate steps to alter the system. This can only have been due to what the judge described as the company's careless and irresponsible attitude to health and safety matters.
23. The consequences of the company's failure in this case were tragic and ought to have been avoided, but we accept the force of the submission that line 4 had not been in use for very long before the incident. The company has no previous convictions and since the accident it has done a great deal to improve the safety in its premises.
24. In setting the starting point at £600,000 in respect of count 1, before making a deduction for guilty plea, the judge clearly had in mind what Gibbs J said when giving the judgment of the Court in R v Colthrope Board Mills Ltd [2002] EWCA Crim 520. In that case, as the judge said, the court stated that a sum of £500,000 in a case involving the death of an employee was not set in stone or to be taken as some sort of maximum. Indeed, we endorse that: it is neither the ceiling nor the floor. It does provide some guidance. We, like the judge, we have been referred to a number of decisions of this Court and, as he was, to decisions of judges at first instance. At first sight it is little difficult to see from where Gibbs J got the figure of £500,000, which seems more appropriate to cases of where there has been a disaster. The authorities which we have looked at suggest a somewhat lower figure.
25. In all the circumstances, we have concluded, in this case, that the fine was greater than it ought to have been and despite, as we say, the careful attention the judge paid to the way in which he calculated the figure, in our judgment it was manifestly excessive. Accordingly, we propose to alter the fine. We propose to do so by quashing the fine in respect of count 2, for it we substitute a fine of £360,000. We calculate that by taking a figure of £450,000 and deducting 20% to take into account the guilty plea. So far as the other counts are concerned, we quash the fine in respect of count 6. We accept the submission that count 6 is subsumed into count 3. The fines in respect of counts 3 and 4 will remain. They total £100,000. The total sentence is therefore £460,000. To that extent, and for those reasons we allow the appeal in respect of the fines.
26. So far as the costs are concerned, in our judgment, the order made by the judge was one well within the acceptable boundaries of his discretion, and we decline to interfere with it.
27. MR MATTHEWS: May I make an application for a defendant's costs order in respect of the costs of this appeal?
28. LORD JUSTICE GAGE: You may make an application.
29. MR MATTHEWS: That is my application. I do not have a figure today, the application will be for--
30. LORD JUSTICE GAGE: I noticed that in one of the cases where there was a similar success or partial success, the Lord Chief Justice said that he did not think it appropriate to make an order for costs in that case.
31. MR MATTHEWS: It is indeed. My Lord, I would only say that there are clearly good reasons for the appeal and it has been successful.
(The Bench Conferred)
32. MR JUSTICE GAGE: No, Mr Matthews, there will be no order for costs. Thank you both very much for your help.