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Dominic Kay KC represents two +£1bn companies

This week Dominic Kay KC has appeared on behalf of two companies with turnovers exceeding £1bn and therefore deemed ‘very large organisations’ under the sentencing guidelines. The cases, one health & safety and one environmental, were each matters in which, applying the relevant Guideline, the sentencing court had the discretion to “move outside the suggested range to achieve a proportionate sentence”. In each case, following representations on the Company’s behalf, the Court agreed that despite the high turnover and significant financial resources of the company, it was not necessary or appropriate to impose a penalty that exceeded the category range for a ‘large’ company.

In R v A, Dominic represented A, a building materials trade supply company with an annual turnover of £1.12bn. The prosecution (at Woolwich Crown Court) followed an accident in one of A’s yards in which an employee was crushed between two vehicles. The Court accepted the submissions on behalf of A that (i) due to A’s H&S systems and the significant efforts to address the risks, the culpability fell between low and medium, (ii) although the harm risked was Level A, the likelihood of that harm arising was low and therefore the appropriate harm categorisation was HC3 and (c) on that basis the proper starting point was in the region of £170,000. The Court made a downward adjustment for mitigating features and then awarded full credit for the plea. The fine imposed was therefore one of £70,000.

In Environment Agency v B, Dominic represented B, a major utility company with an annual turnover in excess of £1bn. The prosecution related to an incident in 2014 when untreated effluent was discharged from a pumping station into the watercourse, close to an environmentally sensitive site and causing a fish kill. At the time of the discharge B failed to comply with the conditions of its consent to discharge by failing to have in place a standby pump. The plea was entered on the basis that (and the Court accepted) the case was exceptional and that it was simply the failure to have a standby pump, which due to a mechanical breakdown would not have been called upon in any event, which made an otherwise lawful discharge unlawful. The Court accepted that the case was one of negligence and harm category 3 under the Environmental Sentencing Guideline and as a consequence the starting point was £60,000. Taking into account the aggravating and mitigating features (for which the Judge made a net downward adjustment of £20,000) and credit for the plea (which was entered on what would have been the first day of trial), the Judge imposed a penalty of £45,000 on the basis that the exceptional nature of the case and the mitigating features meant it was not necessary to step outside the range of fines for ‘large’ organisations, despite B’s ‘very large’ categorisation.

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