Neutral Citation Number: [2008] EWCA Crim 1963
Case No: 200802165 A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Tuesday, 29th July 2008

B e f o r e:

LORD JUSTICE GAGE 

MR JUSTICE STADLEN 
 
HIS HONOUR JUDGE BEVAN QC
Sitting as a Judge of the Court of Appeal Criminal Division 
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R E G I N A 

v 

TDG (UK) LIMITED
 
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Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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Mr J Cooper appeared on behalf of the Appellant

Mr B Thorogood appeared on behalf of the Defendant
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J U D G M E N T 

1.	LORD JUSTICE GAGE:  This matter has come before this court, the application for leave to appeal against sentence having been referred by the Registrar.  We grant leave. 
2.	The position is this.  On 8th February 2008 at Coalville Magistrates' Court, the appellant pleaded guilty and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.  On 28th March 2008 at Leicester Crown Court before Mrs Recorder Cotton QC, the appellant was sentenced as follows: for an offence of breach of section 2 of the Health and Safety at Work Act 1974, a fine of £250,000 was imposed; for an offence of the breach of Regulation 3(1) of the Management of Health and Safety at Work Regulations 1999, the Recorder imposed a fine of £75,000, making a total fine of £325,000.  The appellant was also ordered to pay costs in the sum of £25,000.
3.	There was one co‑accused, Augustinas Vaiciulis, who pleaded guilty to failing to take reasonable care for the health and safety of others at work.  He was find £1,000 and ordered to pay £2,000 costs.
4.	The appellant, is a large organisation involving warehousing and distribution with outlets throughout the United Kingdom and Europe.  We are told that there are a hundred odd sites run and managed by the appellant in the United Kingdom.  There are additional sites abroad in Europe.  The turnover of the company is £546 million, of which their profit margin is £14 million.
5.	The offences arose out of the circumstances that led to the tragic death of a 64‑year old man, Peter Atkins.  This occurred at one of the company's sites at Bardon in Leicestershire on 8th March 2005.  On the evening of that day Mr Atkins was carrying out checks to the rear of his trailer when another trailer rolled backwards and trapped him between the two rear ends.  He was crushed and pronounced dead at the scene.  
6.	The circumstances that gave rise to his death were interrelated and involved breaches of duty by the company and a breach of section 7 of the Health and Safety at Work Act by a non‑employee, Mr Vaiciulis, a driver of Lithuanian origin.  Essentially, two distinct breaches gave rise to the accident.  Firstly, Mr Vaiciulis failed to apply the handbrake to his tractor unit when he sought to couple it up with the trailer unit that hit Mr Atkins.  Secondly, the company had failed to ensure that the trailer had its own independent parking brake applied when it was parked uncoupled.  
7.	The trailer parking brake would only become necessary if the tractor handbrake was not applied and the weight of the trailer or a slope in the ground gave rise to the risk of the trailer rolling.  The trailer was on a modest incline.  The effect of joining the tractor unit to a trailer is to disengage an emergency brake on the trailer unit.  The tractor and trailer unit should then be held by the tractor handbrake.  This is the same basic handbrake as on a motorcar.  If there is no application of the brake unit on the tractor then the trailer's independent parking brake, if applied, provides a safeguard against movement.  Good practice demands that when trailer units are parked they should always have their independent brakes applied to prevent movement.  
8.	The failings of the company were to have allowed a state of affairs to have continued on a site, which they had inherited from Nestle in about the year 2000, whereby operatives did not ensure that trailer independent parking brakes were applied as a matter of routine.  This state of affairs was contrary to the company's own policy and represented a failure to enforce that policy.  The company had not prepared a risk assessment for uncoupling operations at the site or to implement its own training syllabus.  The site rules did not reflect the company's own policy on use of trailer brakes.
9.	The Recorder in her sentencing remarks described the failures in the following terms: 
"A number of defects in the practices at those premises relating to the coupling and uncoupling of tractor and trailers units have been identified.  At the time with which I am concerned, trailers were parked in their car parks, and in particular car park A, back to back and sometimes very close together which meant that even a small amount of unintended movement would be dangerous, particularly in view of the fact that drivers were required to do vehicle checks which involved their being, for some time, at the rear of their own vehicles.   
It is quite clear, I think to anybody, that with these large tractor and trailer units which, in car park A at any rate, had already been loaded, that any unintended movement would be potentially extremely dangerous.  It was also the case that there was a slope in car park A ‑‑ I think not a very great one, but that is hardly material because with these sort of vehicles if they are not properly braked then the likelihood is that any sort of slope will cause them to move down the slope.   
There was a failure as far as training of those who carried out the shunting of these trailer units at the premises was concerned because their training system did not require them or train them to apply the parking or safety brake on the trailer when it was uncoupled from the tractor unit.  That is in spite of the fact, as I understand it, TDG had training programmes of their own which did include that requirement.   
Most particularly, the fault identified at these premises at that time was that it was not part of the system for the parking brakes on trailers to be applied and habitually, it would seem, they were not applied and there was no procedure in force which required them to be employed.  Moreover, there was no system in force at that time of reminding all the drivers who came to the premises to apply the brakes of the tractor units before they left the cabs.  All these matters should have been identified by an adequate risk assessment, but no proper or adequate risk assessment had been carried out and they had not, therefore, been so identified." 
The Recorder went on to describe the aggravating features and mitigating features before imposing the fine to which we have already referred.
10.	The company has a number of previous convictions.  We have been provided with a sheet stating those convictions.  It is fair to say that, apart from one offence which came after the offence with which we are concerned, they are comparatively minor offences by comparison with the one which this court is now dealing with.
11.	The single ground of appeal is that the total fine of £325,000 is manifestly excessive.  In his skeleton argument and submissions, counsel for TDG Ltd, Mr Cooper, has developed that ground of appeal in a number of different ways.  
12.	Firstly, he submits that the culpability of the company is less than the culpability of the co‑accused.  It was, he reminds the court, the latter's negligent actions which caused the accident.  The causative effect of the co‑accused's negligence was, it is submitted, greater than that of the applicant.  
13.	Secondly, it is submitted that the learned Recorder did not make a full and proper allowance for a guilty plea.  The starting point, if she had taken one third discount, would be a sum of some £487,000 which it is submitted is plainly excessive.
14.	Thirdly, it is submitted that the Recorder, arriving at the fine, failed to reflect the mitigation that the company had, since the accident, cooperated with the Health and Safety Executive and instituted steps to remedy the failures in the system.  In his skeleton argument, Mr Cooper points at paragraph 8 to a number of matters, to which we have paid regard, as examples of the way in which such failures as there were before the accident have been remedied.
15.	Fourthly and finally, it is submitted that the fines imposed by the Recorder are outside the range of fines for this type of offence.  Attention was drawn to a number of decisions of this court in these types of cases.
16.	We turn first to the authorities.  It is now generally recognised that in cases of this sort there can be no set tariff.  However, as this court said in R v (UK) Limited AGC Automotive [2007] EWCA Crim 3396, fines should not be wholly arbitrary and it is possible, looking at decided cases, to get a broad feel of a level of the fine.  
17.	The principles on which the court should act are not in dispute.  In R v Balfour Beatty Rail Infrastructure Services Limited [2006] EWCA Crim 1586, the court approved the 13 principles summarised in that case by the trial judge MacKay J.  Our attention has been drawn to these principles and we see no need to set them out in this judgment.
18.	In an endeavour to get a broad feel for the range of sentences in a case where there has been a fatality, we have been referred to a large number of decisions.  The nearest approach to any sort of tariff for cases involving a fatality is, in our judgment, to be found in R v Colthrop Board Mill Limited [2002] EWCA Crim 520.  In that case Gibbs J, giving the judgment of the Court of Criminal Appeal, at paragraph 27 said: 
"It appears from the authorities that financial penalties of up to around half a million pounds are appropriate for cases which result in a death even of a single employee, and perhaps of the serious injury of such a single employee.  We would not wish the sum of £500,000 to appear to be set in stone or to provide any sort of maximum limit for such cases.  On the contrary, we anticipate that as time goes on and the awareness of the importance of safety increases, that courts will uphold sums of that amount and even in excess of them in serious cases, whether or not they involve what could be described as major public disasters."
19.	There are other decisions where the fines are much lower.  The courts have, in reducing fines, taken into account the size and financial stability of the appellant.  Mr Thorogood, who represents the respondent, submits that in the recent case of Chalcroft Construction Limited [2008] EWCA 770, the court appears to accept that £600,000 now represents the sort of figure for a fatality with the added ingredient of safety being sacrificed for profit.  The court in Chalcroft did not expressly state that it had accepted that proposition.  However, we have been referred by Mr Thorogood, to sentencing remarks made by the Recorder in that case. Based on those sentencing remarks and the court's dismissal of the appeal in that case, it would appear to us that there is some force in those submissions made by Mr Thorogood. 
20.	In this case the Recorder, in our view, correctly identified a number of factors which aggravated the offence.  First and foremost, the systemic failures which contributed to this accident were of long standing.  The company inherited the system when they took over the depot in the year 2000.  Nothing was done in the intervening years to remedy these failings and ensure that the company's own safety procedures were instituted and adhered to.  The Recorder found that any unintended movement of a trailer in the car park was "potentially extremely dangerous", and that the system in the car park fell well short of what it should have been.  Secondly, the death of Mr Atkins was obviously a seriously aggravating factor.  Although not, in our judgment, specifically an aggravating factor, the appellant's previous convictions show that it does not have an unblemished record, although these convictions are for a number of minor offences.  
21.	Balanced against the aggravating factors there are, as we have recorded, mitigating factors.  There is no question of the failures being a consequence of putting profit before safety.  Secondly, and importantly, since the accident the appellants have taken significant steps to remedy the systemic failures which led to this accident. In addition, the appellant pleaded guilty at the earliest opportunity.
22.	  The following other factors seem to us of importance.  We do not accept that the appellant's culpability for this accident was any less than that of the co‑accused.  Indeed, it is possible to view the appellant's responsibility as much greater.  Nevertheless, we accept and take into account the fact that the immediate cause of the accident was the co‑accused's negligence.  The breach of duty by the respondent in this case involved a breach of Regulation 3.  There was a prompt and early admission of responsibility.  The fines, as we say, in our judgment, represent a starting point of £480,000 before a guilty plea.  The appellant is a substantial organisation and means are not an issue in this appeal.
23.	Taking all these factors into account, we have reached the conclusion that the fine was not proportionate.  In particular, in our view, the Recorder appears to have attached too little weight to the part played in the incident by the co‑accused.  That, balanced together with the guilty plea, leads us to the conclusion that the very experienced Recorder arrived at a fine which was, in the circumstances, just too large.  What we propose to do, having reached this conclusion, is to quash both fines.  For the fines imposed by the Recorder we propose to substitute fines of £225,000 for the section 2 offence and £50,000 for the offence contrary to Regulation 3.  That produces a fine of £275,000.  The order for costs remains.
24.	MR COOPER:  My Lord, may I ask for my costs of today from central funds?
25.	LORD JUSTICE GAGE:  We see the point to some extent.
26.	MR THOROGOOD:  My Lord, I take the view that that application from my learned friend is not one that I have anything to say about on these facts.  I would like to make a similar application on behalf of the hard pressed local authority, but no piece of law allows that.
27.	LORD JUSTICE GAGE:  No, I am afraid it does not.  You may have your costs, Mr Cooper. 
28.	MR COOPER:  I am obliged.