UK: Overstretched Public Sector At Risk On Sentence

In dismissing an appeal against sentence by a public sector body the Court of Appeal recently gave further insight into their view and application of the Definitive Guideline for sentencing Health and Safety matters (the "Guideline"). The case makes difficult reading for defendants considering challenging a sentence (especially those in the public and charitable sectors) and further reinforces for lawyers the Court's expected (unsympathetic) approach to such applications.

Facts

The Apellant was prosecuted when an employee suffered serious injuries whilst using a Stihl saw to cut overhead branches. The saw was designed solely for cutting kerbs and slabs and its manual expressly warned of the potentially fatal danger of using it to cut wood. There was also evidence that this had been done previously.

The Crown Court took account of the early guilty plea, along with other mitigating factors including a good previous safety record, a high level of co-operation with the investigation, the efficacy of existing health and safety procedures and the steps taken to remedy the deficiencies highlighted by the accident. The Judge also noted the absence of any of the usual aggravating features. He also recognised that a fine would have a significant impact on service delivery by the public body and therefore allowed for a substantial reduction in the penalty to be imposed. Despite that assessment, the Crown Court, imposed a fine of £500,000.

The public body decided to appeal with the application founded on the basis that the Judge had erred in his approach to sentence and had also imposed a penalty that was "manifestly excessive".

Appeal

Public body's submission

Court of Appeal's determination

The Judge was wrong to use the seriousness of the injury sustained as an aggravating feature. In fact, the level of harm sustained was much lower than that risked and should therefore have mitigated the fine.

This reading of the Guideline was mistaken. Once the Judge had made an initial determination of culpability and harm category, it was open to him to move up inside the range chosen to reflect the fact of serious harm having actually been caused.

The Court should not have moved above its starting point to reflect the turnover of the body.

The annual revenue budget of the public body was £120m, which "put the [body] in the "large" category, but much higher than the base point of £50m. The Guideline envisages the need to adjust the sentence range to reflect much larger organisations".

The Judge failed to have sufficient regard to the heavy balance in favour of mitigating features rather than aggravating ones.

It was clear from the Judge's sentencing remarks that the significant mitigation had been taken into account.

The public body was entitled to a "substantial" reduction in sentence under the Guideline. This should be at least 50%.

The Guideline does not specify the level of discount to be given. It states, "the fine should normally be substantially reduced". The level of such reduction is left to the discretion of the sentencing Court.

£500,000 was manifestly excessive.

The Court was not persuaded.

What have we learnt?

  • The Guideline is based on the premise of establishing the harm risked. If the actual harm caused is less serious, that does not equate to a mitigating factor and therefore a reduction in fine.
  • The Court was not minded to interfere with the apparent treatment of the public body as a "very large organisation". The implication therefore is that the Court of Appeal is unlikely to interfere where organisations with a turnover exceeding £100m are treated as such and fines outside the ranges envisaged by the Guideline are imposed.
  • There is no specific percentage by which a fine on a public or charitable body should be reduced to reflect the impact upon the provision of services. It is a matter for the sentencing Court on a case by case basis. The recent £1m fine imposed on Nottingham County Council is testament to the Courts' willingness to punish public bodies on a scale previously only seen in the private sector.
  • As an aside, the Court also reinforced its view that appeal cases are now decided on their own merits and in light of the Guideline. They are not to be determined by reference to other fines previously imposed, whether pre or post Guideline.

The case demonstrates the Court's lack of sympathy with defendants adjusting to the new sentencing regime. It is clear that whilst those in the public and charitable sectors can expect lower fines than their commercial counterparts, penalties will still be huge and will be determined in strict accordance with the Guideline.

Overstretched Public Sector At Risk On Sentence

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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