B&Q Plc, R v [2005] EWCA Crim 2297

[2005] EWCA Crim 2297

Case No 20044 03870/B3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM BOURNEMOUTH CROWN COURT

His Honour Judge Jarvis

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 27 th September 2005

Before

LORD JUSTICE THOMAS

MR JUSTICE GRIGSON

THE RECORDER OF CARDIFF

(Sitting as a Judge of Appeal Criminal Division)

Between

REGINARespondent

B&Q plcAppellant

Peter Rouch QC and Malcolm Gibney (instructed by Bond Pearce,) for Appellant

George B Alliott (instructed by the Head of Legal and Democratic Services of the Borough of Poole) for Respondent

Hearing Hearing dates : 9 June 2005

Judgment

Lord Justice Thomas :

[1]On 16 June 2001, Pamela Hinchliffe visited a store operated by B&Q plc, the appellants, at Poole Dorset to buy some cement for her husband. She went to the external yard and talked to an employee, Mr McKenzie.

[2]At that moment another employee of the appellants, Mr Nicholls was manoeuvring a forklift truck. He reversed it; it struck a glancing blow to Mr McKenzie and crushed Mrs Hinchliffe against some metallic shelving. Mrs Hinchliffe died of her injuries shortly thereafter.

[3]The appellants were prosecuted under the Health and Safety at Work Act 1974. They faced, initially, a 12 count indictment, but not guilty verdicts were directed on 4 of those counts by HH Judge Jarvis prior to the commencement of the trial in May 2004. As presented to the jury there were 8 counts on the indictment. i) Counts 1, 3 and 7 alleged a breach of duty under s. 2(1) of the Act; that subsection sets out the duties to the employees of the appellants. Those counts related to incidents involving fork lift trucks on the 17 January 2001, 21 March 2001 and to the fatal accident on 16 June 2001 to which we have referred. ii) Counts 2, 4, 5, 6 and 8 alleged a breach of duty under s. 3(1) of the Act; that subsection set out the duty owed to non-employees. Those counts were in respect of incidents involving fork lift truck movements on 21 February 2001, 7 June 2001, 11 June 2001, 15 June 2001 as well as the fatal accident on 16 June 2001. From this short summary, it can be seen that counts 7 and 8 dealt with the position of the employee and the non-employee in respect of the fatal accident on 16 June 2001.

[4]The provisions of s.2(1) and s 3(1) were as follows:

“s. 2(1) It shall be the duty of every employer to ensure so far as is reasonably practicable the health, safety and welfare at work of all his employees.” “s. 3(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety.”

[5]After a trial before HH Judge Jarvis and a jury, on 8 June 2004 the jury found the appellants guilty on the counts laid under s. 3(1) but not guilty under the counts under s. 2(1).

[6]The appellants were subsequently fined £40,000 on count 2 , £60,000 on count 4, £70,000 on count 5, £80,000 on count 6, £300,000 on count 8; the total fine was £550,00. They were ordered to pay £250,000 towards the prosecution costs.

[7]The appellants appeal against conviction and sentence by leave of the single judge and renew their application for leave to appeal against conviction on one other ground. (1) Were the verdicts of the jury inconsistent?

[8]The sole ground upon which leave to appeal was given by the single judge was on the issue of whether the verdicts of the jury were inconsistent; the primary argument advanced by the appellants was that it was wholly illogical for the jury to have returned verdicts of guilty and not guilty in respect of the same fatal accident.

(a) The case for the prosecution

[9]It was the prosecution case throughout that the appellants had failed to ensure that so far as was reasonably practicable the fork lift truck movements on the sales floor were tended at all times by a banksman, thereby exposing employees (in the counts involving employees) or non-employees (in the counts involving non-employees) to the risk of being struck by a fork lift truck. In presenting their case therefore the prosecution made no differentiation between employees and non-employees. It was contended that a banksman should have been employed and the appellant’s failure to do so was in the circumstances a breach of duty. The indictment charged the appellants with exposing employees and non employees respectively with exposure to that risk; “risks to health and safety” are the words used in s.3 (1), though not in s 2(1).

(b) The directions to the jury

[10]The judge carefully directed the jury that they should consider each of the counts separately, that the evidence on each was different and therefore their verdicts might not be the same. The judge then set out the different statutory language of s.2(1) and s 3(1) and continued: “If the Crown has made you sure that the employer has failed in the discharge of either one or both of these duties then the employer has committed an offence. The burden of establishing the existence of this duty in this case and the failure to discharge this duty rests upon the Crown, the prosecution, and in the discharging this burden the Crown must make you sure that this duty was required in this case and that there was a failure to discharge it. It is an absolute liability subject only to the defence of reasonable practicability to which I shall refer later”.

The Judge then referred in a little more detail to the ingredients of the offences and continued:

“As Mr Alliott, counsel for the prosecution said in his opening to you, you will have to be satisfied that B&Q is an employer. An allegation under section 2 requires that the prosecution prove that it happened at work, thus you will need to be sure when you are considering the section 2 allegations that you are sure that the allegations set out in the particulars of offence in each count took place at work. So far as the section 3 allegations are concerned, the prosecution must make you sure that the matters complained of in the relevant particulars of offence occurred in the conduct of the defendant company’s undertaking. You will then move on to consider if you are sure that to allow or fail to prevent forklift truck movements on the sales floor being attended at all times by a banksman exposed either employees in the section 2 case, or persons not in their employment in the section 3 case, to a risk to their safety, namely the risk of being struck by a forklift truck. The prosecution only have to show that there was a risk to their safety. It does not have to prove that any harm or injury actually took place. The last ingredient you will need to consider is this. Are we sure that the defendant company to which local management at the store either allowed or failed to prevent the use of forklift trucks operating without a banksman in attendance at all times. If the Crown has not made you sure that a duty existed and that there has been a failure then that is the end of the matter on whatever count you are at that time considering.”

[12]Then after dealing with the burden of proof on the question of reasonable practicability the learned judge continued: “Members of the jury, the question of what is reasonably practicable is a matter for you, the jury. The degree of risk in a particular activity or environment can be balanced against the time, cost, trouble and physical difficulties of taking measures to avoid the risk. If these are so disproportionate to the risk that it would be quite unreasonable for the persons concerned to have to incur them to prevent it, they are not obliged to do so. The greater the risk, the more likely it is reasonable to go to very substantial expense, trouble and invention to reduce it, but if the consequences and the extent of a risk are small, insistence on great expense would not be considered reasonable. It is important to remember that the size or financial position of the employer is not taken into account. The employer’s duty to take all reasonably practicable steps includes ensuring that employees have the requisite levels of skill and instruction and have been provided with safe plant and equipment, but the fact that an employee in carrying out work did so carelessly, or omitted to take the necessary precaution, does not of itself prevent the employer from establishing that he has done everything practicable to avoid risk”.

[13]It is clear from these directions that, although the learned judge drew no distinction between the wording of s. 2(1) and s. 3 (1), he did stress in his very clear directions that the question of duty, breach and reasonable practicability were questions for the jury.

[14]No criticism was or could be made of these directions.

[15]It was common ground at the trial that when the forklift truck manoeuvres were taking place an employee of the appellants should have been employed as a banksman, whether or not employees or members of the public were present. It was the evidence that the appellants had a safety system that should have provided for the employment of a banksman in such circumstances. It was the appellants’ case that the management in Bournemouth had done all they could to ensure a banksman was employed when forklift truck manoeuvres were taking place; indeed some of the evidence was to the effect that banksmen were employed at the time of the incidents charged in the indictment. The case for the prosecution was that banksmen were not employed on those occasions and the management had not done all that was reasonably practicable. (c ) The respective submissions

[16]It was submitted by Mr Rouch QC for the appellants that the jury’s verdicts were inconsistent. The primary submission made was in relation to counts 7 and 8. It was contended that in relation to those counts, given the way in which the jury was directed, it was impossible for the jury to conclude that there had been a breach of duty in respect of Mrs Hinchliffe under s. 3(1) but not in respect of Mr McKenzie under s.2(1).

[17]It was submitted by the Crown that there was a rational explanation for the jury’s verdicts and they were not logically inconsistent. The jury could have taken a different view as to the respective position of the employee and the non-employee as regards the issues of duty, breach and reasonable practicability. For example, in relation to the issue of reasonable practicability, the jury could have been satisfied that everything reasonably practicable had been done for an employee but not for a member of the public; there were a number of factors: i) Employees generally wore orange aprons ii) Employees were familiar with forklift truck operations and movements. Many employees would have been trained to act as banksman; others would have been trained to act as forklift drivers. iii) Employees received health and safety training and had access to the appellants’ health and safety manual, risk assessment and other health and safety literature. iv) Mr McKenzie had seen the erratic driving of Mr Nicholls earlier in the morning on 16 June; he was a trained and authorised forklift driver.

(d) The case law

[18]To succeed in setting aside the verdict of the jury on the grounds of inconsistency, it is necessary to establish first that the verdicts are in fact inconsistent and second, if they are inconsistent, that a legitimate train of reasoning cannot be postulated that can sensibly account for the inconsistency or that the verdicts cannot be regarded as safe.

[19]On the first issue it is helpful to refer to two decisions of this court. In R v Bell, (transcript 9700085 Z4 15 May 1997) the defendant was convicted of 3 counts of indecent assault and acquitted of 3, all involving the same girl. The court found that there was no inconsistency in the circumstances and continued:

“As it seems to us, there is no logical inconsistency in the verdicts returned by the jury, and unless there is a logical inconsistency, the question of whether or not the jury's verdicts can sensibly be explained does not generally arise. There have recently been a number of appeals to this Court based on allegedly inconsistent verdicts, and it is perhaps therefore worth emphasising that it is axiomatic that, generally speaking, logical inconsistency is an essential prerequisite for success on this ground: see Durante (1972) 56 Cr App R 708, at page 714, and Warner, unreported, Court of Appeal, Criminal Division, transcript dated 17th February 1997. There are, of course, exceptional cases of which Cilgram [1994] Crim LR 861 provides an example, where a verdict may be quashed because, although there is no logical inconsistency, the particular facts and circumstances of the case render the verdict unsafe. However, it is to be noted that in Cilgram this Court, differently constituted, expressly rejected the submission that, where a complainant's credibility is in issue and her evidence is uncorroborated, guilty verdicts must be regarded as unsafe because the jury also returned not guilty verdicts in relation to some of the complainant's allegations. As was pointed out by Evans LJ, giving the judgment of the Court in Warner, see transcript page 15F, such a conclusion would be contrary to the proposition that juries should generally be directed to give separate consideration to each count. The jury in the present case was so directed. There was, as it appears to us, no logical inconsistency between the verdicts which they returned, but, in any event, there was, as we have indicated, a good reason for the jury to differentiate between the counts in the way which they did. Accordingly that ground fails.”

[20]In R v W (M) (transcript 98/3892/W4 30 March 1999) the defendant was convicted on some counts of indecent assault and rape and acquitted on others; the sole issue at trial had been the respective credibility of the complainants and the defendant. After a review of the authorities, Lord Bingham CJ in giving the judgment of the court concluded:

“It seems to us important to begin our consideration of this matter by reminding ourselves of the role of the jury in a criminal case. The jury is one of the oldest and most highly valued of our legal institutions, esteemed by the public and almost all of the legal profession, for the fairness, open-mindedness, common sense, practical judgment and breadth of experience which jurors bring to their important task. But the jury is not a precision instrument. It delivers its decision ordinarily in one or two words; it gives no reasons; it provides no explanation. While jurors ordinarily listen with obvious attentiveness to judicial directions, no one can be sure what they make of those directions in the course of their deliberations. It may be that if their thought processes were subjected to logical analysis, flaws would be found. If, however, a flawless process of reasoning were required, a jury would be a strange body from which to require it. As Evans LJ pointed out in R v Van Der Molen [1997] Crim LR 604, 605, the court must be very careful not to usurp the role of the jury. Secondly, we would point out that the judge's direction in this case, as is acknowledged, was in conventional terms. He urged separate consideration of each count. He emphasised that the facts were for the jury. He suggested that most, if not all, of the counts in relation to each complainant would stand or fall together, but he did not direct the jury that, as a matter of logic, it was necessary for counts 1 to 7 and 8 to 16 respectively to be decided in the same way. He was not invited to give such a direction. The defence acquiesced in the direction which he did give, and on appeal Miss Worrall expressly approves it. If the view of the defence was that any differentiation by the jury in the verdicts on counts 1 to 7 or on counts 8 to 16 would of necessity be inconsistent, then that is a view which should have been put to the judge and he should have been invited to give a different direction. As it is, it would be anomalous that a jury, directed that the facts were for them, that they should consider the charges separately without any obligation to decide all the counts in relation to each complainant the same way, and that they should not convict unless they were quite sure, should then be held to have returned irrational or logically inconsistent verdicts because they took the judge's direction at its face value and gave effect to it. The cases to which we have referred in our view make quite plain the proper approach. In a case other than the Cilgram type of case (which is in a class of its own), it is ordinarily for an appellant to show a logical inconsistency between the verdicts criticised and then to demonstrate that it is not possible to postulate a legitimate chain of reasoning which could explain the apparent inconsistency. The court will not interfere with the verdict of the jury unless those tests are satisfied.”

[21]It is therefore only if the verdicts are shown to be logically inconsistent, does the court consider the second question. A commonly cited formulation of the second question is that in R v McCluskey (1994) 1998 Crim. App. R 217 where Henry J, giving the judgment of the court said:

“The general rule in this Court is that where the jury convict on one count but acquit on another, this Court will quash the conviction on grounds of inconsistency if, and only if, the conclusion reached by the jury is one at which no reasonable jury who had applied their minds properly to the facts of the cause could arrive. (see the unreported decision of Devlin J in Stone [1955] Crim.L.R.120, CCA., formally adopted by thisCourt in Durante (1972) 56 Cr.App.R.708, 714, [1972] 1 W.L.R. 1612, 1617E). But in the case of Trundell (unreported, June 28, 1991) it was emphasised that the fact that two verdicts were shown to be logistically inconsistent might not by itself be a reason for quashing a verdict unless the only explanation for the inconsistency must or might be that the jury was confused and/or adopted the wrong approach, thus making the verdict complained of unsafe.”

[22]We were referred to R v Clarke and Fletcher (Transcript 96/5638/X2, 30 July 1997); the appellant was convicted by a jury of causing grievous bodily harm with intent but acquitted on a count of having a shotgun with intent. The court accepted that it had been shown that the verdicts were logically inconsistent because on the count of causing grievous bodily harm with intent the only case advanced by the Crown was that the appellant shot the victim and that necessarily involved, if only if at the moment of firing, possession of the gun; possession of the gun with the requisite intent, even if only for long enough to enable him deliberately to fire at the victim’s ankle would as a matter of law have constituted sufficient possession for the purpose of having a shotgun with intent. The court therefore turned to address the second question which it formulated as whether it was “possible to postulate a legitimate train of reasoning which could sensibly account for the inconsistency”. An explanation for the logical inconsistency was put forward by counsel for the Crown. The court concluded:

“Is this a proper and legitimate explanation for the inconsistent verdicts? We invited Mr. Nelson to say whether, if it was the way the jury had reasoned, he was contending that the conviction on Count 4 was safe, and we are not sure that he gave an unequivocal answer, though his repudiation of the argument advanced in his skeleton perhaps provides the answer. Certainly we do not feel able to say that a conviction which, because of its inconsistency with an acquittal on another Count, can only be explained on the basis of the jury’s acceptance of a case which was never advanced, for which there was no evidence and about which they had heard no submissions and received no direction from the judge, can be said to be one art which they could properly arrive. Even though, if considered as an explanation for the inconsistency, it in fact both explains and eliminates it, it cannot thereby save the conviction, if the prima facie logically inconsistency verdicts could only be explained by resort to such a supposition, the resulting conviction could not be regarded as safe.”

[23]We were also referred to R v Cova Products

[2005] EWCA Crim. 95

where this court recently discussed the formulation of the second question. The appellants and another company, Carter, were charged under s 2 and 3 of the Health and Safety at Work Act 1974; the appellants were convicted on counts 1 and 2, but Carter acquitted on count 3. The circumstances of the case were such that the Court of Appeal concluded that the jury should have been directed that they first had to find Carter guilty on count 3, before they could find the appellants guilty under counts 1 or 2. It was therefore conceded by the prosecution that the verdicts were logically inconsistent, though they sought to maintain that the verdicts were nonetheless safe. After referring to the approach in McCluskey, the court continued:

“Clearly that approach cannot be applied in the present case. Count 3 was in no sense academic, or a relatively minor charge, and to suggest that the jury may have acquitted of that offence because they knew that Carter was in receivership is pure speculation. In a note at [1994] Crim. LR 860, Professor Sir John Smith doubted whether much assistance could be derived from Trundell, and submitted that: “… a better view would be that the conviction is not safe unless the court is satisfied that the verdict is not based on the confusion or wrong approach of the jury; and that, once the verdicts are shown to be inconsistent, the burden of persuasion is on the Crown, not the appellant.”

In our judgment, there is much to commend that approach. In Clarke and Fletcher 30th June 1997 (unreported), Hutchison LJ said that an appellate court will not conclude that the verdict is unsafe if:

“… notwithstanding that it is logically inconsistent with another verdict, it is possible to postulate a legitimate train of reasoning which could sensibly account for the inconsistency.”

No such train of reasoning has been suggested in the present case, and, in any event, as Professor Smith pointed out at [1998] Crim LR 484 and 485, how can a legitimate train of reasoning, itself a matter of speculation, lead to logically inconsistent verdicts.” “… a better view would be that the conviction is not safe unless the court is satisfied that the verdict is not based on the confusion or wrong approach of the jury; and that, once the verdicts are shown to be inconsistent, the burden of persuasion is on the Crown, not the appellant.” “… notwithstanding that it is logically inconsistent with another verdict, it is possible to postulate a legitimate train of reasoning which could sensibly account for the inconsistency.” (d) Conclusion on this issue

[24]We begin with the first question – are the verdicts inconsistent? As regards Counts 1, 2, 3, 4, 5 and 6, the events all related to different days. It would be entirely logical for the jury to have accepted the evidence in respect of some of those days and rejected the others. If the verdicts on those counts had stood alone, the appellants would have had little semblance of an argument on logical inconsistency, as was properly accepted on their behalf.

[25]However, as we have pointed out, Counts 7 and 8 related to the same fatal accident. At the forefront of the appellants’ argument was therefore the fact that the issue as how the accident happened was a common issue - Nicholls reversed into the yard where the building materials were, stopped to straighten up, and after a few seconds suddenly reversed back for 10 feet hitting McKenzie and crushing Mrs Hinchliffe; it was a very bad piece of driving.

[26]However, the circumstance that the factual issues relating to the accident are common does not begin to establish that the verdicts were inconsistent. The correct approach is to consider whether the directions given to the jury were correct and, if so to ask whether, on those directions the verdicts are logically consistent.

[27]We have set out the directions given by the judge; he told the jury that they must consider separate verdicts on each count and their verdicts could be different. The judge explained to the jury the questions of duty, breach of duty and the questions of reasonable practicability. No criticisms were, as we have said, made of the directions.

[28]In our view it was for the jury to consider in respect of Counts 7 and 8, in the light of the directions they had been given and on the evidence relating to each count, whether the appellants were guilty. They were entitled to come to the verdicts they did, acquitting the appellants in respect of the duty to employees but convicting them in relation to the duties to the public: i) There were a number of factors which applied to the appellants’ employees, but which did not apply to members of the public. Employees were familiar with forklift truck operations and would be on the lookout. Employees were trained in health and safety. ii) None of the above applied to members of the public; they would be unaware of forklift truck movements and the need to take care in respect of them. iii) More importantly, members of the public might well include children. Special precautions would be essential when, as is often the case, a family goes with children to shop at a store such as that operated by the appellants. Moving a forklift truck around in such circumstances, without supervision and with children unable to look after themselves as easily as adults, would be an obvious danger.

[29]The jury could therefore without any difficulty, as a matter of logical consistency, have concluded that the appellants had not done all that was reasonably practicable to ensure that no forklift truck movements took place without a banksman present because of the risk to children, but had done all that was reasonably practicable for employees. They could logically have been sure that a much higher standard was applicable for that reason in respect of the public.

[30]It is clear, as we have said, that during the course of the trial the prosecution made no distinction between the duty owed under s. 2 (1) and s. 3 (1); it was the prosecution case that the appellants were in breach of duty in respect of both. Nor did the defence make such case. Nor did the judge, in his summing up, expressly draw the distinction. However as is clear from the passages in the summing up which we have set out, the learned judge directed them that the question of what was reasonably practicable was a matter for them. It was for the jury to balance the degree of risk against the time, cost, trouble and physical difficulties of taking measures to avoid the risk. He expressly pointed out that the greater the risk the more likely it is reasonable to go to the very substantial expense and trouble to reduce it.

[31]It seems to us that a jury, faithfully following these directions was entitled to come to the conclusion it did. It is a matter of common sense that either a higher duty was owed when children were present or that balancing cost against the need to reduce the risk, the appellants ought to have spent more money to provide a better system or employed more people to ensure the safety of the public.

[32]It is difficult to see how a jury can be said to have acted illogically when they have followed the judge’s directions. As Lord Bingham said in R v W , in a passage which we have cited, “it would be anomalous that a jury, directed that the facts were for them, that they should consider the charges separately without any obligation to decide all the counts in relation to each complainant the same way, and that they should not convict unless they were quite sure, should then be held to have returned irrational or logically inconsistent verdicts because they took the judge's direction at its face value and gave effect to it”.

[33]We therefore conclude that there was no inconsistency in the verdicts of the jury. The second question as to whether, if the verdicts had been shown to be logically inconsistent, there was no legitimate train of reasoning which could sensibly account for the inconsistency, does not therefore arise.

[34]The sole ground on which leave was given therefore fails. (2). Cross admissibility and sample counts

[35]The single judge did not grant leave to appeal on any other ground. The appellants have renewed their application for leave to appeal on the basis that the learned judge should have given a further express direction to the effect that evidence in relation to one count was not admissible in relation to the other counts; this was not a case where the counts were sample counts.

[36]As we have already set out, the judge carefully directed the jury that they should consider each of the counts separately, that the evidence on each was different and therefore their verdicts might not be the same. He gave them that warning on two separate occasions. Later in the summing up, when directing the jury how to consider the images taken by the in-store cameras (which were placed on DVD for convenience), he told them again that all twelve of them had to be satisfied in respect of a particular forklift movement that there was no banksman present; it was insufficient for six of them to consider on a particular count one movement where a banksman was not present and six of them to consider a banksman was not present on a different movement.

[37]Although in some circumstances, it might be desirable for a judge to give the jury an express warning that they must not use the evidence on one count as evidence on another, it seems to us clear from what the learned judge said that they were sufficiently directed in respect of the counts on this indictment. Moreover it is clear, from the jury’s verdict, that they did consider the counts separately as they returned different verdicts in respect of them. There is, in our view, nothing in the argument raised that would persuade us to grant leave to appeal, as it cannot be said that there was either a misdirection or that the verdict was in any way unsafe. (3). Sentence

[38]The appellants also appealed, with leave of the single judge, against the sentence imposed.

[39]It is clear from the judge’s sentencing remarks that he took into account the fact that the appellants had not put profit before safety, they had a very good safety record, they had given written warnings on the use of forklift trucks without the employment of banksman and that after the incident the appellants had tightened their procedures and instigated alternatives to the movement of forklift trucks. Against that background he approached the matter on the basis that: i) there had been a failure of local management to appreciate the strict nature of the appellants’ policy; ii) there had been a failure of more senior management to require an understanding of the policy at local store level; iii) there had been an audit failure in that senior management had not discovered the misapprehension of the local management. In each of these respects, the criminality of the appellants was such that a significant overall financial penalty, in line with the authorities, was required. As the judge observed, there would be public disquiet at the unnecessary loss of life.

[40]It was contended on the part of the appellants that although the counts before the jury had been laid on the basis of incidents on a particular day, the prosecution had invited the judge to form his own view as to the number of deficient movements on each day. The judge had followed this approach and concluded that a number of movements were proved in respect of certain counts and sentenced accordingly. They contended that this approach was wrong.

[41]We do not agree. It is clear from the whole of the judge’s sentencing remarks that his approach was to look at the totality of the appellants’ criminality and, although the first incident was isolated, and the fact that the degree of repetition, evidenced by the frequency of the offences in June, indicated a failure of management that had led, as it did, to the death of a member of the public. The number of movements each day was only one factor, albeit not a significant factor, though it was relevant not only to the extent of the criminality on the day of each incident, but also to the failure of the management to observe through review of the images what was happening in the store.

[42]In our judgment, looking at the matter in terms of the increasing criminality of the appellants, the fines imposed in respect of each incident viewed individually and in totality marked the overall criminality. We do not think that the judge was materially influenced by the number of movements that occurred on each day; his approach was clearly to look at the matter in the round. We find no merit in the specific criticism advanced.

[43]We have also considered whether the sentence can otherwise be said to be wrong in principle or manifestly excessive in accordance with the principles laid down by this court in R v F. Howe Ltd [1999] 2 Crim App R (S) 37; in setting out the circumstances to be taken into account, the court observed:

“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 also to the shareholders.”

[44]In R v P&O Ferries

[2004] EWCA Crim 3236

, this court reiterated those principles:

“For a company of this substance a sentence by way of fine has to be of sufficient significance not only to reflect the seriousness of the offence and the appellant’s culpability, but also to include an appropriate sting, in financial terms, so as to sent a message to both managers and shareholders and indeed other employers in this field. The sentence also had to be such as to reflect the death of …”

[45]Although no information was provided to us about the turnover or profitability of the appellants, the judge was told by counsel for the appellants that it operated 326 retail outlets and employed 36,000 people. Its stores occupied over 22 million square feet of retail space and the number of people that passed the threshold of the appellants’ stores was about 168 million.

[46]Considering the factors relating to the accident, the size of the appellants and their relative culpability and criminality in relation to the offence, there is no possible basis for contending that this fine was in any way manifestly excessive or wrong in principle.

[47]In considering this issue, we also have had some regard to the fact that the learned judge gave the appellants 28 days to pay the fine. That was the period formally requested by the appellants and the accession to that request was an indulgence to the appellants. Where a fine (which can only be viewed as modest when set against the appellants’ overall turnover and profitability) is imposed on a company of anything approaching the size of the appellants, the seriousness of the offending and the impact of the penalty can be brought home to them by their being required to pay the fine within a much shorter period of time than 28 days; an undertaking of the size of the appellants does not need 28 days in which to pay a fine. Such fines ought, as a matter of course, to be paid either immediately or in a period to be measured in single figure days, unless very cogent evidence is provided to the court that more time is needed.

[48]In contradistinction, the principles applicable to very small companies, partnerships or other forms of business enterprise are set out in the judgment of this court in R vRollco Screw & Rivet Co [1999] 2 Cr App (S) 436. On the cogent evidence provided in that case a lengthy time was given to pay. But even in such a case, the first instalment should be made payable at a very early date so that the effects of the criminality are brought home.

[49]Taking into account the overall criminality of the conduct of the appellants, we do not consider that the fine imposed can in any way be considered wrong in principle or manifestly excessive. Indeed it might be said to be at the very bottom of the scale of what might be considered appropriate. (4). Costs

[50]As we have set out, the judge ordered the appellants to pay £250,000 towards the costs of the prosecution. He also refused to make a defence costs order under s.16 of the Prosecution of Offences Act 1985 in respect of the counts on which the appellants had been acquitted. The appellants accepted that they could not appeal the refusal to make the defence costs order (see R v Canterbury Crown Court ex p Regentford, The Times 6 February 2001). They appealed with the leave of the single judge against the order of costs in favour of the prosecution.

[51]The appellants’ submissions in this part of the appeal were that the order did not properly reflect what had happened during the proceedings; it is therefore necessary first to summarise the course of the proceedings: i) Between the accident in June 2001 and the committal to the Crown Court in April 2003, there was considerable preparatory work followed by an “old style” committal proceedings at the Magistrates Court. ii) The Plea and Directions hearing took place on 12 May 2003 iii) A first trial took place between 17 November and 1 December 2003; this had to be aborted because of problems with the speed of the playback of the CCTV evidence; for reasons which it appears were never clearly established, the playback was twice as fast as it should have been. This was not noticed for several days. When it was, the jury were discharged as they might have been misled. iv) There was a further trial that took place between 2 and 4 December 2003; this was aborted because of the unreliability of the playback of the multiplex CCTV tapes; images were skipped. v) It was decided that a new way of presenting the tapes had to be devised; the images were put onto DVD format in the period January – April 2004. vi) On 8 and 9 March 2004 there was a hearing at which the prosecution were allowed to adduce the evidence using the DVD format. vii) As we have noted, the appellants were acquitted on the direction of the judge on four of the twelve counts immediately before the trial which commenced on 11 May 2004 viii) As we have also set out, on 8 June 2004 the jury found the appellants not guilty on 3 of the 8 remaining counts.

The judge in ordering the appellants to pay £250,000 held:

“In my view the task I have is to overview the whole of the conduct of this case from start to finish in the Crown Court and to fix a sum which I believe is appropriate to be paid, having regard to the history of the case, not only in the Crown Court, but in the Magistrates Court as well and its investigation, and if I consider it proper to make such allowances as I believe are right to the defence in relation to the difficulties which have occurred during the trial concerning, for example, the state of the tapes, the consequent need to abort two trials and the fact that the defence secured acquittals on some of the counts at trial and some of the counts on my direction. I first of all want to say that notwithstanding my attention having been drawn by the defence to the Practice Direction in Archbold, and in particular paragraph 2.2, I do not propose to make an order to the defendants of a defendant’s costs order. What I propose to do, as I say, taking an overview of the whole of the case in the way that I have described is to make to the defendants a significant allowance by way of reduction in the claim for costs made by the prosecution. The reduction will be just a little short of £50,000 because I shall order that the defence pay £250,000 towards the prosecution’s costs. ”

[53]The appellants contended that the judge had erred in principle in his approach. He should have worked out what the costs were on either side and then on the basis of the figures made a proper and reasoned assessment. If that had been done, then the sum allowed would have been significantly smaller, given the costs that had properly been incurred by the appellants on the aborted trials and the counts on which they were acquitted.

[54]The costs as set out in materials provided to us at our direction after the hearing of the appeal were as follows: i) The two earlier trials: Prosecution Defence Solicitors £10,228.68 £28,934 Advocate(s) £25,050 £74,000 Expert £19,944 Disbursements £3,899.09 £2,7555 Total £39,177.09 £125,633 ii) Total Prosecution costs ( a detailed breakdown of which was supplied to the trial judge) excluding the aborted trials were: Officer/solicitors £70,107.35 Advocate £105,187 Disbursements £41,018.35 Total £254,665.21 iii) We were not provided with a total breakdown of the costs of the defence; we were provided only with the defence costs incurred in the preparation for the trial that commenced on 10 May 2004 and the conduct of that trial: Solicitors £98,685 Advocate(s) £64,500 Expert £16,988 Disbursements £7,685 Total £187,858

[55]It was submitted on behalf of the prosecution that the costs of the defence were excessive and unreasonable: i) It was not necessary for the appellants to have employed two advocates. ii) The attendance of the appellants’ expert on a daily basis was not necessary. iii) Some of the costs incurred in the aborted trials were carried over. iv) Furthermore the prosecution costs were borne by the Borough of Poole; as the judge had refused to make an order that the costs of the appellants be paid out of central funds, it was not just that a sum should be deducted from the costs that the prosecution might recover, unless those were costs which the court could order be paid by the prosecutor under Regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 on the basis that they were incurred “as a result of an unnecessary or improper act or omission”

[56]The power of the court under s.18 (1) of the Prosecution of Offences Act 1985 is to make such order as the court considers just and reasonable. Although of course, the judge was exercising a discretion in making the order he did, we consider that the judge erred in principle: i) Because of the differing nature of the statutory provisions relating to costs in criminal proceedings and the way in which costs are borne by different departments of the Executive in this type of prosecution, the judge should have approached the issue on costs in this particular case by making orders under the different provisions rather than adopting a global approach. As was set out by Lord Lane in 1991 in the Guide to the Award of Costs: “The judge therefore has a much greater and more direct responsibility for costs in criminal cases than in civil. He should keep the question of costs at the forefront of his mind at every stage of the case and ought to be prepared to take the initiative himself without any prompting from the parties. The judge should consider the costs when giving or refusing to give directions and when deciding applications, including applications for adjournments.” ii) In this case, the question of the costs of the defence for the aborted trials should have been considered when the second aborted trial failed and the proceedings had to be adjourned. However, it was only after the verdicts that it appears the issue was raised. iii) The judge then decided to adopt a global approach. Although we do not consider that this was the correct approach in this case, as there is no right of appeal in respect of the refusal to make a defence costs order, it would not be just now to depart from that global approach. iv) Nor would it be just now, given the global approach of the judge, only to deduct from the costs of the prosecution only those costs which were incurred as a result of an unnecessary or improper act or omission. v) On the global approach, we consider that the appellants should have received a sum by way of credit that properly reflected the costs incurred by them in relation to the aborted trials and should not have been required to pay the prosecution costs of those trials. We have reached this view because it was for the prosecution to have ensured that the equipment needed to play the CCTV evidence was operating correctly. In considering what part of the costs incurred by the appellants in the first aborted trial should be allowed by way of credit, we reject the prosecution argument that the cost of leading counsel should be disallowed, as we cannot say that the employment of leading counsel was not an expense properly incurred: see Rv Dudley Magistrates Court ex p Power & City Stores Ltd (1990)154 JP 654. We do, however, take into account the general conduct by the appellants of their defence. We therefore consider that the prosecution costs should be reduced by £39,000 by way of disallowance of their costs and by £60,000 as a credit for the defence costs of the aborted trial. vi) We also consider that some allowance must be made for the fact that the appellants were acquitted on the direction of the judge and by the jury on some counts. The appellants contend that an allowance of 33% of its costs of £187,000 ought to be made and a similar proportion of the prosecution costs ought to be disallowed. We do not consider that this is the correct figure. Little by way of the overall costs of both related to the acquittals on the direction of the judge; all the evidence on count 7 was relevant to count 8; the evidence on the other counts on which there was an acquittal was about 2 days. We consider therefore that the sum of £20,000 should have been deducted from the costs awarded to the prosecution.

[57]We therefore propose, solely on that basis, to reduce the sum to £177,792.28. We would not have reduced the sum ordered by way of costs on the basis that it was disproportionate in relation to the fine. It was plainly proportionate and well within the means of the appellants to pay; there would have been no reason not to require the appellants to pay the whole of the prosecution costs which were properly and reasonably incurred in a case of this kind.