Neutral Citation Number: [2016] EWCA Crim 1755
No. 2016/04378/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Tuesday 25th October 2016
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Thomas of Cwmgiedd)
LORD JUSTICE TREACY
and
MR JUSTICE LEGGATT
REGINA
v
KENNETH THELWALL
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Mr P Smith appeared on behalf of the Applicant
Mr P Bates appeared on behalf of the Health and Safety Executive
JUDGMENT
(As Approved by the Court)
Copyright ©
Tuesday 25th October 2016
THE LORD CHIEF JUSTICE:
1.
On 26th August 2016 in the Crown Court at Manchester before His Honour Judge
Leeming QC the applicant was sentenced to twelve months' imprisonment.
He had
previously pleaded guilty to an offence under section 37 of the Health and Safety at Work
Act 1974.
2. The applicant's application for leave to appeal against sentence has been referred to the
full court by the Registrar. We grant leave.
3.
The offence to which the appellant pleaded guilty was that as a director of Thorn
Warehousing Limited he had connived at the breach by the company of its duties under
section 2(1) of the 1974 Act, or the breach was attributable to his neglect. The company
pleaded guilty. It was fined a sum of £166,000.
The facts
4. The facts of this case are relatively simple. Thorn Warehousing Limited was a company
that hired out mobile access equipment. It had a small number of employees. The appellant
was the sole director.
5. A fatal accident occurred on 29th January 2014. An employee, Paul Williamson ("the
deceased") was tasked with loading a mobile elevating work platform to bring it back to the
company's depot. He was loading it onto a flatbed truck when it toppled over and landed on
him, causing fatal injuries.
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6. The background to the accident was, in summary, the following. In November 2012 the
company had purchased a Spider elevating work platform. Initially it was moved with the
use of a pick-up truck and trailer fitted with hinged ramps. The appellant decided that he
wished to use the pick-up to move other machinery. He therefore bought another trailer. For
that trailer, which had a flatbed height of 450 millimetres, he bought from The Ramp People
ramps which he used. Another flatbed truck was then purchased. It was clear that three
matters had to be looked at: first, the ramps had to be of a sufficient gradient; secondly, the
ramps required anchoring; and thirdly, there had to be proper training.
7. The new truck was brought into operation eight days before the fatal accident. It was
claimed by the company and the appellant that the appellant and the deceased had practised
loading it, but there was no record of that. Secondly, the appellant said that he had asked the
deceased to bore some holes so that the ramps could be secured. However, that was not done
and he had not checked that it had been done. Although the deceased had had training a year
previously, he had had no training in relation to the loading of this elevating platform.
8. It was contended at the hearing before the judge that a risk assessment document had been
created ex post facto, but that matter, as we understand it, was not pursued.
9. We are grateful for the provision to us of photographs of the truck and of the equipment
from which the circumstances in which the accident occurred are clear.
10. The one striking feature of the case to which the judge paid considerable heed was that,
unusually, the appellant had a previous conviction in the Crown Court at Chester for breach
of health and safety obligations in relation to which a person had been killed. On that
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occasion the appellant was fined £125,000. There was no risk assessment on that occasion.
The risk that serious accidents could occur if proper procedures were not followed should
therefore have been apparent to the appellant. We accept the point that has been made before
us by counsel on behalf of the appellant that the person killed in that earlier accident was not
an employee of the appellant at the time. But the gravamen of the previous incident is that it
shows the importance that must be attached to Health and Safety at Work Regulations. It
significantly undermines the argument that the appellant did not appreciate the serious
consequences that could occur if proper health and safety procedures were not followed.
The hearing before the judge
11. The mitigation that was advanced before the judge was that the guilty plea had been
tendered at the earliest opportunity; that the appellant had employed someone to advise him
on health and safety in 2012 and 2013 on other aspects (but not this); and that he had cooperated with the inquiry. It was also said that if he received a custodial sentence, there was
a risk of the failure of an associated business with which the appellant had become involved.
12. At the hearing before the judge, the Health and Safety Executive, as prosecutors in the
name of Her Majesty, said that they considered that the appellant's culpability was between
high and very high, and that the level of harm was a category 1, level A, namely, that there
was a high likelihood of death resulting. On the basis of the matters advanced by the Health
and Safety Executive, the starting point would have been between 12 and 18 months' custody,
and the range would have varied across the guideline of between 26 weeks and two years.
13. The appellant, although he accepted that the harm was high, said that there was a
medium likelihood of an accident and that the judge should have approached the matter on
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the basis of either a fine or 26 weeks' custody. It was strongly urged that if the offence
crossed the custody threshold, the sentence should be suspended.
14. The judge concluded, in his shortly expressed sentencing remarks, that the deceased had
needlessly been put at risk. He made a finding, which is of importance, that the appellant's
attitude to health and safety was "cavalier"; that he should have trained the deceased; that he
should have carried out a risk assessment; and that the previous conviction to which we have
referred was one which seriously aggravated the culpability of the appellant. The judge
imposed a sentence of twelve months' imprisonment. That meant, as he gave full credit of
one third, that he must have had in mind an initial sentence of 18 months. He must, therefore,
have sentenced on the basis that the harm was at level 1 and that culpability was on the cusp
of high or very high.
In essence, as has been correctly submitted, the judge must
substantially have adopted the approach that had been urged upon him by the Health and
Safety Executive.
The submissions on the appeal and our conclusions
15. In the submissions advanced on the appellant's behalf today, Mr Smith has concentrated
on four key issues. First, in relation to culpability, he submits that in the context of this
company culpability was medium.
He says that, essentially, this was a case of poor
judgment, no more. However, in our judgment there was sufficient evidence before the judge
on which he was entitled to find that the level of culpability was high or on the cusp of high
and very high, based on is finding that the attitude of the appellant was "cavalier".
16. Secondly, as regards the risk of harm, it is said the judge had assessed the risk at too high
a level.
In our judgment there was ample evidence upon which the judge could have
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concluded as he did. The dangers of loading onto a flatbed truck equipment of the kind
visible in the photographs, without proper training and supervision, are well-known. It is
well-known that if machinery topples, severe injury may be caused.
17. Thirdly, as to the likelihood of harm and its causation of death, very much the same
arguments apply.
18. Finally, there is the question of the appellant's previous conviction. We accept that the
previous conviction, which is itself extremely unusual in such a case, occurred in different
circumstances. Nonetheless, it was highly material to the judge's view of the case, bearing in
mind that it ought to have been brought home to the appellant the seriousness of attending to
health and safety matters and the putting in place of proper training and proper supervision.
19. Although the arguments have been eloquently addressed to us and we have given leave
to appeal, we can see no proper criticism of the basis upon which the judge approached this
case, or any proper basis for the contention that the sentence passed was manifestly
excessive.
20. Accordingly, this appeal is dismissed.
The citation of similar cases
21. The court would like to add three observations in relation to this kind of case. As the
court has made clear in other cases where the offence is the subject of a Sentencing Council
Guideline, and also in relation to Schedule 21, guidelines are guidelines. The citation of
decisions of the Court of Appeal Criminal Division in the application and interpretation of
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guidelines is generally of no assistance. There may be cases where the court is asked to say
something about a guideline where, in wholly exceptional circumstances – and we wish to
emphasise that these are rare – the guideline may be unclear. In such circumstances the court
will make observations which may be cited to the court in the future. However, in those
circumstances it is highly likely that the Council will revise the guideline and the authority
will cease to be of any application.
22. It is important that practitioners appreciate that our system now proceeds on the basis of
guidelines, not case law.
It will, therefore, be very rare, where there is an applicable
guideline, for any party to cite to this court cases that seek to express how the guideline
works, other than in the rare circumstances we have set out. Decisions of this court are of
particular importance to the individuals concerned, but they are unlikely to be of any
assistance to further appeals where the guidelines are in issue.
23. Secondly, where a case comes before a sentencing judge, it is important that matters
follow the same course. As we observed in the course of argument, the judge said:
"… before dealing with sentence, I have been referred in the
defence bundle and in submissions this morning to a number of
online articles where suspended sentences of imprisonment have
been imposed on individual defendants for breaches of health and
safety legislation. These emanate from the HSE themselves, the
CPS website, the BBC news webpage and the Express and Star
newspaper webpage. They are all online articles or summaries
and not reports of cases. None purports to be full transcripts of
court proceedings and the sentencing remarks of judges who
imposed those sentences and may therefore be quite inaccurate.
All are first instance decisions. To my mind when sentencing in
a case like this, it is important to remember, as I have said, that
every case is fact specific."
It is right to point out that these matters were not put before the judge by the Health and Safety
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Executive. We wish to make clear that it is impermissible to adduce reports of that kind before a
judge. The judge has the guideline. His duty is to apply the guideline and to make it clear that
that is what he is doing. It will, we hope, make it much easier for judges and shorten the time
that such cases take if the practice to which we have referred ceases forthwith.
Health and Safety cases are ordinary criminal cases
24. It is, we regret to say, sometimes forgotten on all sides, particularly by those who defend in
these kinds of case, that they are no different to other criminal cases. They must be approached
on the basis that they are no different. It is said on occasion that they require much more detail,
and much more careful explanation. Of course there may be cases where the technical evidence
is difficult, but the general approach to the conduct of these cases should be the same before a
trial judge as any other criminal case. That seems to have been forgotten. It is a matter of deep
regret that this court has to remind practitioners of that fact.
25. The same is true on occasion in this court. For example, in this case we were provided by
the respondent Health and Safety Executive with a 19 page skeleton argument. The Court of
Appeal Civil Division, by provision in the Civil Practice Direction 52C at paragraph 31, makes
it clear that even in full-scale civil appeals the maximum length of a skeleton argument should
not exceed 25 pages. In our experience, the provision of a 19 page skeleton by the respondent in
a sentence appeal is an example of those who appear in this court thinking that there is
something special about these cases. There is not.
26. Furthermore, there is another way in which the modern form of guidelines is being
forgotten. There is extensive reference in the documents before us to Friskies Schedules. R v
Friskies Pet Care UK Ltd [2000] 2 Cr App R(S) 401 is no longer of any materiality. The matter
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has been superseded by the Criminal Practice Direction 7Q3-7.
Costs
27. Finally, we wish to make an observation on costs. It is a welcome feature of these cases that
the courts often make substantial orders against defendants for the recovery of investigative
costs and the costs that might have had to be incurred to ensure equality of arms before a trial
judge. However, the Health and Safety Executive must bear in mind that in this court in
particular the position of a respondent is generally no different to that of the Crown Prosecution
Service when an appeal is brought by an offender. We were asked in this case to make an order
for costs that included: first, the attendance of a solicitor (which is generally unnecessary for any
sentence appeal); and secondly, for an award to counsel that was vastly in excess of what would
be paid to counsel instructed by the CPS.
28. There may be rare occasions upon which such amounts are sought to be recovered from
appellants, but those cases will be rare. In this particular case it is unnecessary for us to set out
the details of the figures concerned, save to say that they are a multiple of many times what the
CPS would have paid counsel. That is because in this case it is clear from the papers that have
been put before us by the office of the Court of Appeal Criminal Division that the appellant has
no money.
29. We regret that we have had to make those lengthy observations, but we hope that for the
future this will result in a more economic and speedy disposal both of first instance cases and of
appeals in this court. They should not generally take any longer than ordinary criminal appeals
of the type this court is well used to hearing.
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