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Increased Penalties for Health and Safety Offences

August 2021

In July 2021, we looked at recent prosecutions under the Environmental Offences Definitive Guideline including Southern Water receiving a £90 million fine for thousands of illegal discharges of sewage which polluted areas of Kent, Hampshire and Sussex. In this month’s article we consider recent prosecutions under the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline (the “Definitive Guideline”) which came into force in February 2016.

The Definitive Guideline

As a brief reminder, the Definitive Guideline comprises five separate guidelines, which cover various offences contrary to the Health and Safety at Work Act 1974, the Food Safety and Hygiene (England) Regulations 2013; the Food Hygiene (Wales) Regulations 2006; the General Food Regulations 2004; and the Corporate Manslaughter and Corporate Homicide Act 2007.

The health and safety offences are split into two separate guidelines: one for individuals and one for organisations.

The guideline for health and safety offences follows a model based on the offender’s culpability, the risk of harm created by the offence, likelihood of harm and actual harm (if any) caused. The guideline contains four categories of both culpability and harm.  For organisations, different sentencing tables are used depending on the size of the organisation (determined by annual turnover) – there are five main classifications of organisation:

• Micro: turnover of no more than £2m
• Small: turnover of £2m–£10m
• Medium: turnover of £10m–£50m
• Large: turnover of £50m and over
• Very Large: turnover very greatly exceeds the large organisations threshold.

For individuals, just one sentencing table is used for all adult offenders. A similar approach applies to food safety and hygiene offences, albeit there are only three categories of harm for such offences.

The guideline for Corporate Manslaughter comprises two offence categories based on the level of harm and culpability. It also includes separate sentencing tables based on the size of an organisation.

1. R v Wood Treatment Ltd & George Boden [2021] EWCA Crim 618

On 17 July 2015, there was an explosion at a wood flour mill in Bosley, Cheshire. The explosion led to the death of four of the mill’s employees and injuries to several others. Proceedings were subsequently brought against Wood Treatment Limited (“WTL”), the company that owned and operated the mill, and its managing director, Mr Boden.

The mill ground and milled wood into various grades of wood dust or wood flour. Wood dust is classified as a “dangerous substance” under the Dangerous Substances and Explosive Atmospheres Regulations 2002 reg.2(c).

The Defendants were each charged with offences under the Health and Safety at Work etc. Act 1974. In addition, they each faced four counts of either corporate manslaughter (in the case of WTL) or gross negligence manslaughter (in the case of Mr.Boden).

The prosecution alleged that there were four possible ways in which the fatal explosion could have occurred. Three of these possibilities related to the insufficient removal of a prior accumulation of settled wood dust, i.e. dust that had settled in the mill in the past but had not been cleaned up. The other scenario, ‘Scenario 3’, involved a sudden large release of dust from a failure in a piece of equipment; this did not rely on an accumulation of dust which had been neglected.

The Defendants successfully argued that there was no case to answer in respect of the manslaughter charges because ‘Scenario 3’ was a possible and credible scenario. The prosecution could not show which scenario had actually caused the explosion.

The Judge gave the ruling on 20 April 2021. Given the lack of a firm conclusion as to the mechanism by which the wood dust explosion was caused, causation was one of the key issues that was considered by the Court. The Judge determined that, on the evidence, she was not satisfied that the Jury would be able to be sure of the causative link between gross negligence on the part of the Defendants and the explosion causing the deaths. Amongst other things, the existence of ‘Scenario 3’ meant that the jury could not rule out a possible cause for the explosion in which the Defendants were innocent.

On 27 April 2021, the Prosecution brought an application for leave to appeal against Mrs Justice May’s ruling. The issue on appeal was whether the judge was right to conclude that there was no or no sufficient evidence to prove that the negligent acts or omissions alleged against the company and Mr. Boden played any substantial part in causing the explosion which actually happened.

The Court of Appeal held that it was correct to conclude that ‘Scenario 3’ was a possibility. Further, the Prosecution had no evidence which would enable them to state that negligent acts or omissions of WTL or Mr.Boden had caused the explosion if it had resulted from a ‘Scenario 3’ event. The appeal was therefore dismissed, and the Defendants were acquitted of the respective four counts of corporate / gross negligence manslaughter brought against them.

Nevertheless, in June 2021, Mr.Boden was given a nine-month prison sentence, suspended for 18 months, and fined £12,000 along with being banned from being a company director for 4 years. WTL was fined £75,000 for failing to protect its employees from the risk of fire.

Birmingham City Council v Tesco Stores Ltd (unreported, 19 April 2021)

In April 2021, Tesco was fined £7.56m after pleading guilty to 22 offences under the Food Safety and Hygiene (England) Regulations 2013. This came after inspections by Environmental Health officers found out of date food being sold at three different stores on several occasions. In addition to the fine, Tesco was ordered to pay a £170 victim surcharge and £95,500 costs.

The Sentencing outline records that Tesco has “…a policy not to sell any foods after the date marked”. However, it suggests that there was little evidence that the procedures put in place to prevent a breach of this policy were being carried out in the offending stores, with items as far as 17 days beyond their use by date being sold.

Tesco’s culpability for the offence appears to have been classified as ‘medium’, with the Judge considering various factors with may have increased / reduced the seriousness of harm or reflecting mitigation. Amongst other things, the Judge noted that “Tesco are only pleading guilty because they have run out of options.”

Interestingly, when turning to address the level of fine to be imposed on Tesco, the Judge was critical of the Sentencing Council, suggesting “…[t]hat the Sentencing Counsel desperately needs to introduce another table in their sentencing tables…” and “…give guidance on multi-billion-pound companies.” Faced with a need to find “…a figure which brings the message home to the defendant company and to others in the food business”, the Judge settled on a starting point of £10m for one offence. This figure was increased to reflect the number of shops and offences involved and the period of investigation, but subsequently reduced to the final £7.56m figure due to mitigating factors and Tesco’s guilty pleas.

W H Malcolm Limited found guilty of health and safety failings (July 2021)

W H Malcolm, operators of the Daventry International Rail Freight Terminal, near Rugby was fined £6.5 million on 30 July 2021, after being found guilty of negligence over the death of an eleven-year-old boy.

Whilst searching for a lost football the eleven-year-old, Harrison Ballantyne, had been able to gain easy access to the rail infrastructure. Harrison climbed on top of a stationary freight wagon and received a fatal electric shock from the overhead line.

The Office of Rail and Road depot operator said, “WH Malcolm were charged with, and found guilty of, two offences under the Health and Safety at Work etc Act 1974:

Failing to ensure, so far as is reasonably practicable, that persons not in their employment were not exposed to risks to their health and safety through the conduct of their undertaking; and

The Management of Health and Safety at Work Regulations 1999 — failing to undertake a suitable and sufficient assessment of the risks to the health and safety of persons not in their employment”.[1]

“During a trial which lasted three weeks, the court heard how ORR’s investigation found WH Malcolm had not only failed to assess the risk of unauthorised access to the terminal, but also failed to implement appropriate measures to prevent unauthorised access to a part of the site where there were frequent freight movements and overhead line equipment energised at 25,000 volts”.[2]

The company contested the matter, and the learned Judge considered that the company did not take responsibility for what was a serious and obvious failure to prevent access to a highly dangerous environment.

It is understood that the company had an annual turnover in excess of £200,000,000. Under the Definitive Guideline the judge found that the defendant’s culpability was high, the harm category was 1 (a high likelihood of Level A harm) and mindful of the number of children exposed to the risk she concluded it was necessary to move up a category at step 2.

This case is a stark reminder to all companies to secure their machinery or any dangerous environments, as a circumstance could occur whereby an employee of member of the general public could come to harm unknowingly understanding the risks. It is also a reminder of a responsibility to protect premises and machinery from trespassers.

Conclusion

Since the introduction of the Definitive Guidelines there has been a substantial increase in the size and number of fines for larger organisations.

The cases above serve as a contemporary reminder, that it is important that organisations and their directors take the appropriate steps to comply with Health and Safety Legislation as any breaches are increasingly likely to result in enforcement action   and a large fine that will have a significant effect on the business.

[1] https://www.orr.gov.uk/search-news/company-fined-after-death-11-year-old-boy-freight-terminal

[2] https://www.orr.gov.uk/search-news/company-fined-after-death-11-year-old-boy-freight-terminal

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