Since the Sentencing Guidelines were issued earlier this year, the approach of the courts to sentencing in prosecutions involving fatalities has been of interest. The Guidelines stated that where the death was caused by the defendant’s breach, the fine will “seldom be less than £100k”. One tactic adopted by defendants in such cases is to argue that the breach was not, of itself, causative of the incident leading to the death. Where the courts accept this line of argument, the Sentencing Guidelines are not followed, with fines set commensurate to the defendant’s financial circumstances.

One example of this is where a construction company were fined £1 following a prosecution under section 3(1) of the HSWA. Howorth Scaffolding Services Ltd (Howorth Scaffolding) and Glenmill Group (Developments) Ltd (Glenmill) were both prosecuted for the same offence following a fall on a Lancashire development. Peter Walton suffered fatal injuries when he fell as a result of an unsecured scaffold board which gave way. Howorth Scaffolding were said to have been responsible for failing to construct the scaffolding properly, whilst Glenmill had a responsibility to ensure the site was safe for workers in their role as principal contractor. In a reflection of their respective financial circumstances, Howarth Scaffolding were fined £25k with £13,793 costs, and Glenmill fined £1 with £13,793 towards costs.

In the unreported case of Marble City the Court of Appeal was asked to reconsider the application of the Sentencing Guidelines in a case where the defendant was of restricted financial means. The incident itself involved the death of their employee, Ronald Douglas, who was assisting a colleague with the unloading of a trailer containing slabs of Marble, which was situated on uneven ground. The slabs were unrestrained in “A” frames when six tonnes of stone fell, crushing Mr Douglas. It became apparent that there had been an unsafe loading and unloading system in place for a number of years, and that the risk assessments were inadequate, despite one of the directors, Jamie Waldron, having had formal health and safety training. The unloading was also not properly supervised by another director, Gavin Waldron, who failed to ensure the driver who attended was properly trained and experienced in unloading such goods. Each director was fined £10k under section 37 of the HSWA, with the company fined £100k with £47,564 costs after admitting breaches of sections 2(1) and 3(1) of the HSWA.

The defendant applied to the Court of Appeal with the argument advanced that in some cases, where defendants do not have the means to pay substantial fines (Counsel described the company’s financial position as “parlous”), the starting point of £100k as set out in the Guidelines was too high. The Court of Appeal disagreed and stated that the Guidelines were clear in their intention, the £100k figure was not a starting point, and fines could be in the £100s of millions where the financial status of the company justified such a level. The Guidelines replaced previous law on the setting of fines, and they must have a punitive impact on the defendant. The starting point for the judge had been £180k with £150k for the company and £15k for each director. These had then been reduced to take into account early “guilty” pleas and the mitigating factors. The Court of Appeal held that the approach taken by the judge to sentencing was not manifestly unfair and permission to appeal was refused.

The caselaw indicates the willingness of the courts to follow the Guidelines, particularly where the breach was found to be a significant cause of death. It highlights the need to review carefully the circumstances of the incident itself, to establish whether a departure from the Guidelines is feasible, which may have the effective of reducing the fine, dependent upon the financial status of the defendant.