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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Whirlpool UK Appliances Ltd v R [2017] EWCA Crim 2186 (20 December 2017) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2017/2186.html Cite as: [2018] 1 Cr App R (S) 44, [2018] 1 WLR 1811, [2018] ICR 1010, [2018] WLR 1811, [2018] WLR(D) 19, [2017] EWCA Crim 2186 |
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ON APPEAL FROM BRISTOL CROWN COURT
His Honour Judge Patrick
S20170069
Strand, London, WC2A 2LL |
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B e f o r
e :
THE RT
HON THE LORD BURNETT OF MALDON
THE HON MR JUSTICE TEARE
and
THE HON MR JUSTICE KERR
____________________
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Appellants |
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- and - |
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(Upon the prosecution of Her Majesty's Inspectors of Health and Safety) |
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____________________
Mr Alan Fuller (instructed by Lester Aldridge LLP) for the Respondent
Hearing date: 21 November 2017
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Lord Burnett of Maldon CJ:
The Facts in outline
a) The appellants did notrequire
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
"If one or both of these factors apply the court must consider moving up a harm category or substantially moving up within the categoryrange
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…"
The Guideline provides for larger organisations in this way:
"Very
large organisations
Where an offending organisation's turnover or equivalentvery
greatly exceeds the threshold for large organisations, it may be necessary to move outside the suggested
range
to achieve a proportionate sentence."
- Profitability. Adjust downwards for a small profit margin and upwards for a larger profit margin.
- Any quantifiable benefit derived from the offence.
- Whether the fine will put the offender out of business.
Authority
"It is important at the outset torecall
the provisions which Parliament has enacted in the Criminal Justice Act 2003 (CJA 2003) in
relation
to the duty of the courts in sentencing, as these principles are applicable to all offenders, including companies:
i) The courts must haveregard
in dealing with offenders to the purposes of sentencing which Parliament specified as (a) the punishment of offenders (b) the
reduction
of crime (including its
reduction
by deterrence), (c) the
reform
and
rehabilitation
of offenders, (d) the protection of the public, and (e) the making of
reparation
by offenders to persons affected by their offences (s.142 of the CJA 2003).
ii) In considering the seriousness of the offence the court must haveregard
to the culpability of the offender and the harm caused or which might foreseeably be caused (s.143 of the CJA 2003).
iii) If a court decides on a fine it must approach the fixing of fines havingregard
not only to the purposes of sentencing and the seriousness of the offence, but must also take into account the criteria set out in s.164 of the CJA 2003:
(1) Before fixing the amount of any fine to be imposed on an offender who is an individual, a court must inquire into his financial circumstances.
(2) The amount of any fine fixed by a court must be such as, in the opinion of the court,reflects
the seriousness of the offence.
(3) In fixing the amount of any fine to be imposed on an offender (whether an individual or other person), a court must take into account the circumstances of the case including, among other things, the financial circumstances of the offender so far as they are known, or appear, to the court.
(4) Subsection (3) applies whether taking into account the financial circumstances of the offender has the effect of increasing orreducing
the amount of the fine."
"We do not think there is any advantage to be gained by such a definition. In the case of most organisations, it will be obvious that it either is or is notvery
large. Doubtful cases must be
resolved
as and when they arise."
The Sentencing Remarks
"so far as the guideline is concerned … not only are there no aggravating features, every single mitigating feature arises … It has an excellent health and safetyrecord
… The company had also taken steps to ensure that [Mr Dalley] was aware of his duty to act under a code of practice which highlighted the
risk
of working at height, and the company was aware that he was qualified to undertake the work he was doing. It is accepted that there was no formal process to inform workers of contractors working on site. Mr Dalley had been asked to notify the workforce when he would be working at the site of the accident but did not do so."
"I haveregard
to the fact that there were systems in place; that there were systems for working at height; there was a lockout policy; there were policies for working with contractors, of which Mr Dalley was aware and in which he was conversant, he himself had been trained for working on platforms and had undergone
retraining
in 2015. The platforms themselves have an excellent safety
record
… While the permit to work could have been fuller and could have contained more detail, in fact it contained a significant amount of details to minimise a
risk
… it was only on the day of the incident itself that there was any
risk
…Whilst there was no document confirming the presence of Mr Dalley at the factory on Saturday and no one directly
responsible
at the time, it is clear that people were aware of his presence, and there had been a walk through to discuss
risk
only two days before the incident."
"I am told that manufacturing costs often amount to some 80% of the turnover and I am asked to contrast this company with those with lower operational costs. I haveregard
to that point but decline to draw a distinction between companies with high costs and those with low. In my judgment that appropriate starting point is £1.2 million. I give credit for plea and also make allowance for good character and
remorse.
Other factors have been arrived at when arriving at low culpability and therefore I impose a fine of £700,000 …"
If we unpack that a little, theresult
is this. The starting figure of £1.2 million was
reduced
by £150,000 for good character and
remorse
and then
reduced
by a third to
reflect
the guilty plea.
The financial position of the appellant
Discussion