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Some practical advice for applying the Sentencing Guideline for Health and Safety offences in a “social distancing” Crown Court

On Wednesday 3rd of June 2020 *** Limited were sentenced by HHJ Stubbs KC, at Leeds Crown Court, for an offence contrary to S.2 HSWA 1974 arising from the death of an employee, ‘JG’ in March 2017. This was the first effective health and safety sentence undertaken by counsel from Crown Office Chambers since the lockdown in March 2020 and Malcolm Galloway, instructed by James Shrimpton of Kennedys, sets out below his thoughts and practical advice arising from the experience covering both the effect of the pandemic in the sentencing process and the practical difficulties of appearing in a ‘social distancing court’.

On 24th March 2017, JG died at the defendant company’s premises in Huddersfield. JG had been working on a piece of machinery used in the manufacture of fibres used in teabags. A quantity of fibres had become wrapped around one of the rollers in the machine, a regular occurrence which required manual clearance by operatives. JG was attempting to clear the blockage when he was suddenly dragged into the machine and killed. The HSE investigation identified a failure to properly guard the side of the machine.

On 6th  December 2019, before the Leeds magistrates court, the company entered a guilty plea, the magistrates declined jurisdiction and committed the company to Leeds Crown Court for sentence.

On the 20th of May 2020 prosecution and defence teams were contacted by listing at Leeds Crown Court and asked if they could be ready for a sentence hearing a week later on the 27th of May 2020.  Updated financial information was obtained, documents were drafted and the case proceeded to submissions by the parties on the 27th of May, with the sentence being passed a week later on the 3rd June 2020.

HHJ Stubbs KC made the following findings under the guideline:

Step 1:- Culpability: – Top of medium/bottom of high. Harm: – medium likelihood of level A, harm Category 2, but then an ‘uplift’ to the top of category 1 to reflect the death of JG.

Step 2:- Medium sized organisation (last three years accounts showed turnover of £32.4m, £34.1m and £33.7m) taking the above culpability and harm the starting point was £750,000.

No aggravating factors and a number of mitigating factors including a high level of cooperation (‘what more could they have done’) reduced the figure to £650,000.

Step 3:- The judge recognised that even before the pandemic the company had a substantial turnover but a relatively low profit margin and as a result of the pandemic was predicted to make a substantial loss this financial year. He reasoned that whether the fine would put the company out of business was a different question to whether CV-19 would put it out of business, but he accepted he must look at the overall economic situation.

As a result of the identified drop in turnover and predicted profit margin he reduced the figure down to £550,000

Step 4:- The judge found this was not applicable as he had already taken certain factors into account at step 3.

Step 5: –  After the reduction for the early guilty plea the fine was £366,850 and the judge allowed the company 5 years to pay.

Comment: – This was a well-reasoned sentencing judgement with the judge reflecting the ‘economic reality’ of the pandemic on the company at step 3, but also giving due weight to the available mitigation. As part of the mitigation bundle the company provided a detailed statement from the financial controller split into three parts i) details of the financial position of the company up to March 2020 ii) details of the immediate impact of the CV.19 pandemic on the business; and iii) a forecast of the lasting impact of the CV.19 pandemic on the business. The defence submitted that even before the pandemic the low profit margin of the company was a relevant consideration under step three, but the predicted downturn in turnover as a result of the pandemic was a further matter the judge should take into account when looking at the ‘financial reality’ of the company. In taking the unusual step of adjourning the sentencing hearing to allow time to consider the submissions the judge was plainly troubled how he should approach the effect of CV.19 in the sentencing process. It is clear from his sentencing remarks the judge accepted step 3 was the appropriate stage to consider the CV.19 issues and accepted they were appropriate factors for which to reduce the applicable fine. It is therefore essential for defence teams to be well prepared before the sentencing hearing with up to date financial information on which to base reasoned ‘step 3’ submissions. A simple, ‘the company is going to find it very hard because of CV.19’ is unlikely to find favour before a sentencing judge, particularly in a case involving a fatality.

On a more practical note, the social distancing procedures implemented by Leeds Crown Court ensured a safe working environment for all and should be commended. From security on the stairs indicating when it was safe to move up and down a floor, to the court staff who controlled the seating of the deceased’s family and the safe movement in and outside court there were comprehensive measures in place at the court. These effective systems included the reassuring sight of immaculately cleaned toilets and cleaners constantly cleaning the obvious ‘touch points’ around the court building.

In summary, it is essential that regulatory cases continue to be heard in the Crown Court and this experience leads me to believe that with the appropriate preparation and communication with the courts, most cases can and should be heard without the inordinate delay feared by many. As this experience shows, there is light at the end of the tunnel.

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