Case No: 200404303A9
Neutral Citation Number: [2005] EWCA Crim 1409
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SHEFFIELD
HIS HONOUR JUDGE MOORE
T99/0956
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday, 26 May 2005
Before :

THE RT HON LORD JUSTICE WALLER
THE HON MR JUSTICE HEDLEY
and
THE HON MR JUSTICE ROYCE
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Between :

	The Crown		
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	Jarvis Facilities Ltd		

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Mr Stuart Denney (instructed by Addleshaw Goddard Solicitors) for the Appellant
Mr Bryan Richard Cox (instructed by Health and Safety Executive) for the Respondent

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Judgment
The Hon Mr Justice Hedley : 
1.	This is an appeal against sentence, with the leave of the full court, imposed on 5th July, 2004 by His Honour Judge Moore sitting in the Crown Court at Sheffield.  The appellants had pleaded guilty to an offence contrary to Sections 3(1) and 33 of the Health and Safety at Work Act 1974 and were fined £400,000 together with costs assessed at £28,061.
2.	The prosecution arose out of a railway accident that had occurred on 10th November 2002.  The main line runs North from Sheffield and is cleared for 100mph running.  Some distance north of Sheffield lies Aldwarke junction which gives access to a diversionary route known as the Roundwood Chord towards Mexborough.  The speed limit for trains entering the Roundwood Chord is 25mph.  On the day in question, a freight train travelling north was so diverted.  It entered the junction at no more than 25mph but in crossing the ‘down’ line to the ‘up’ line (prior to entering the Chord itself) it was derailed.  Happily the train remained upright so that there was neither significant injury or damage.  The immediate cause of the derailment was the absence of a stretch of rail in the junction between the ‘down’ and ‘up’ main lines.
3.	A subsequent enquiry revealed the reason for this absence.  Some time earlier a defect in the points on the ‘down’ line at this junction had been detected.  It was required to be repaired urgently over the weekend.  The decision was taken to plainline the junction, that is to say to close access to the Roundwood Chord from the ‘down’ line: hence the removal of the length of rail.  Although no specific method statement was drawn up for this work, it was carried out under a properly trained and qualified worker.  Once the work had been completed, two things were necessary: first, the junction should have been physically closed off by ‘clipping and scotching’ but this was never done; and secondly the signaller needed to be informed.  He also needed to do two things: first to put a sleeve over the lever which controlled this junction which he did; and secondly to enter the fact in the relevant book which he failed to do.  
4.	Between then and the accident some further unrelated work was carried out at that site.  As a result of that work the sleeve was mistakenly removed from the junction lever in the signal box.  Given the absence of an entry in the book, the duty signaller on 10th November 2002 would have had no means of knowing that the Cord was closed from the ‘down’ line and hence this accident.  The judge described matters thus:
“There was a failure to lay down a proper method system for a relatively routine procedure, a failure to carry out such procedures reasonably, or indeed sensibly, and a failure to carry out the most elementary of cross check protected systems.  The result was to create a situation where, if another body not employed by these defendants or indeed anybody connected with the Jarvis Group failed absolutely to carry out their normal obligations, an accident was likely.  So it was that points were allowed to open which should have been locked out, thereby permitting a goods train to run off the northbound mainline towards a piece of track used normally for diversions and goods trains into a space where the actual track had been removed.”
It was an inevitable conclusion that on this occasion the appellants fell far below the standards reasonably expected of them.
5.	When assessing the penalty in this case there were a number of specific factors that the judge would have had in mind.  Most important amongst these perhaps would have been the element of risk involved.  On the one hand it could be said that this was a serious failure which caused a derailment on a line cleared for 100mph running with potentially horrific consequences.  In fact, however, there was never a prospect of a two train crash because once the junction was opened the line in both directions was automatically protected by red lights.  Moreover the actual junction was limited to 25mph and no passenger train was timetabled to use it although it was accepted that a passenger train might be so diverted in the event of, for example, planned maintenance on the main line; even so it would be rare as few passenger train drivers had the requisite route knowledge.  Nevertheless, the kind of failings, had they occurred elsewhere, as they could have done, might have resulted in a greatly increased risk.
6.	The judge was clearly (and rightly) influenced by his perception of the gravity of failings in this case.  He was also influenced (and again rightly) by the fact that a sister company Jarvis Fastline Ltd had been fined £500,000 in the Crown Court at York on 25th August 2000 in relation to failures giving rise to actual collision risks.  Whilst this was not in any sense a previous conviction of these appellants, it is inconceivable that they were not fully aware of that case and its implications.  The judge clearly thought that real risk to life and limb had been raised in this case and that a deterrent element was called for in the sentence.  He recognised that the appellants had now withdrawn from this work and in working on an annual profit of around £1.4m he had taken that into account.
7.	The learned judge had correctly referred to the guidance offered by this court in R –v- F Howe & Sons (Engineers) Ltd [1999] 2 Crim App Rep (S) 37.  On page 44 the court says this:
“The objective of prosecutions for health and safety offences in the work place is to achieve a safe environment for those who work there and for other members of the public who may be affected.  A fine needs to be large enough to bring that message home where the Defendant is a company not only to those who manage it but to its shareholders.”
It will be seen at once that this gives rise to real difficulty both in achieving consistency of sentence and in ensuring that some proportion is maintained between the quantum of the fine and the gravity of the specific case given that offending companies may have vast disparities of economic strength.  A fine that may hardly touch a multi-national might put a small company out of business yet their offence may have been the same.  Consistency of level of fine may not therefore be a primary aim of sentencing in these cases.
8.	On page 43 the court comments that:- 
“in assessing the gravity of breach, it is often helpful to look at how far short of the appropriate standard the defendant fell in failing to meet the reasonably practicable test.”
Further on these words appear:
“Particular aggravating features will include: (1) a failure to heed warnings; and (2) [not applicable here] …….Particular mitigating features will include: (1) prompt admission of responsibility and a timely plea of guilty; (2) steps to remedy deficiencies after they were drawn to the Defendant’s attention; and (3) a good safety record.”
The judge was entitled to conclude that there had been warnings in this case based on the York proceedings just as the appellants could pray in aid the mitigating factors.
9.	Mr Stuart Denney in advancing the case on behalf of the appellants draws our attention to a number of authorities.  His purpose was twofold.  First he sought to demonstrate degrees of culpability: a class of case that fell within a public disaster category and then a lesser class of case which could be further subdivided between those where death occurred, those involving serious injury and those in which neither featured.  Secondly he sought to argue that brackets of fines were discernible on the basis of that analysis of the authorities.  So far as it goes, we accept that such an analysis can be made.
10.	However, in our judgment, it does not represent the full picture.  In the first place, as we have noted, consistency of fine is not a primary objective though it is of course not irrelevant.  Secondly, and more importantly, the cases to which he drew our attention in the wide second category were all from the private sector.  We, of course, recognise that this case was not a disaster case nor, on its facts, was there any real risk that it could have been one.
11.	Nevertheless we conclude that the court is entitled to take a more severe view of breaches of health and safety at work provisions where there is a significant public element.  This is so particularly in cases (like the railway) where public safety is entrusted to companies in the work that they do and where the general public simply has to trust in the competence and efficiency of such companies.  Moreover where the failures are such that (as here) it is fortuitous that the risks thereby generated were not greater in the sense that these failures could have happened anywhere, the court is entitled to take account of that as well.  Accordingly in our view, public service cases will often be treated more seriously than those in which the breaches are confined within the private sector even where there is comparability between gravity of breach and economic strength of defendant.
12.	Coming back to the present case we find it difficult to criticise the approach adopted by the learned judge towards sentence in this case beyond perhaps that he overestimated the actual risks generated in these particular circumstances.  Moreover these appellants are entitled to point out that a real cause of this incident was independent failings in the signalling system.  Having said that we are of the opinion that even taking into account the matters raised in the preceding paragraph of this judgment, this fine was too high.  This case is in fact of significantly lesser order than the York case nor can we altogether ignore the authorities where neither death nor serious injury were involved.  Even allowing for a legitimate element of deterrence and expression of public outrage, the fine in this case should not have exceeded £275,000.  There being no complaint about the costs order, this appeal will be allowed to the extent of substituting for the original fine of £400,000 the sum of £275,000.