Regina v F. Howe & Son (Engineers) Ltd
Court of Appeal, Criminal Division (Lord Justice Rose, Vice-President, Mr Justice Scott Baker and Mr Justice Hughes) 6 November 1998
FOLLOWING THE expression of disquiet in several quarters that the level of fines currently being imposed for offences contrary to the Health and Safety at Work Act 1974 was too low, and in view of the increasing recognition in recent years of the seriousness of such offences, the court outlined some of the factors which should be taken into account by judges and magistrates when imposing such penalties.
The Court of Appeal allowed the appeal of F. Howe & Son (Engineers) Ltd against a total fine of pounds 48,000 imposed in respect of four offences under the Health and Safety at Work Act 1974 and related regulations, and substituted a fine of pounds 15,000.
Ian Dixey (Cartwrights, Bristol) for the appellant; Hugh Carlisle QC and Oba Nsugbe (Health and Safety Executive) for the Crown.
Mr Justice Scott Baker said that in assessing the gravity of the breach of duty imposed on employers by the Act, it was often helpful to look at how far short of the appropriate standard the defendant had fallen in failing to meet the test of what was reasonably practicable. It was often a matter of chance whether death or serious injury resulted from even a serious breach. Generally where death was the consequence of a criminal act it was regarded as an aggravating feature of the offence, and the penalty should reflect public disquiet at the unnecessary loss of life.
A deliberate breach of the health and safety regulations with a view to profit aggravated the offence. The standard of care imposed by the legislation was the same regardless of the size of the company or its financial strength. Smaller organisations which did not have their own in-house expertise in health and safety matters could obtain it, if necessary by seeking assistance from the Health and Safety Executive.
Other matters that might be relevant to sentence were the degree of risk and extent of the danger created by the offence; the extent of the breach or breaches; and, importantly, the defendant's resources and the effect of the fine on its business.
Particular aggravating features would include a failure to heed warnings, and deliberate financial profit from a failure to take necessary health and safety steps or a risk run specifically to save money. Particular mitigating features would include prompt admission of responsibility and a timely plea of guilty; steps to remedy deficiencies after they had been drawn to the defendant's attention; and a good safety record.
If a defendant company wished to make any submission to the court about its ability to pay a fine it should supply copies of its accounts and any other financial information on which it intended to rely in good time before the hearing, both to the court and to the prosecution. Where such accounts or information were deliberately not supplied, the court would be entitled to conclude that the company was in a position to pay any financial penalty it was minded to impose, and where the relevant information was supplied late it might be desirable for sentence to be adjourned, if necessary at the defendant's expense.
The objective of prosecutions for health and safety offences in the work place was to achieve a safe environment for those who worked there and for other members of the public who might be affected. A fine needed to be large enough to bring that message home not only to those who managed the company but also to its shareholders. Whilst in general a fine should not be so large as to imperil the earnings of employees or create a risk of bankruptcy, there might be cases where the offences were so serious that the defendant ought not to be in business.
With regard to costs, where a defendant was in a position to pay the whole of the prosecution costs in addition to the fine, there was no reason in principle for the court not to make an order accordingly.