Shaw, Re Attorney-General's Reference No 89 of 2006 [2006] EWCA Crim 2570

Case No 200603887/A9[2006] EWCA Crim 2570
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 4th October 2006
Strand
London, WC2
B E F O R E:
SIR IGOR JUDGE
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE GOLDRING
MR JUSTICE HENRIQUES
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 89 OF 2006
(MICHAEL SHAW)
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave 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)
MR J LAIDLAW appeared on behalf of the ATTORNEY GENERAL
MR P BIRKETT QC & MR G FORLIN appeared on behalf of the OFFENDER
J U D G M E N T

SIR IGOR JUDGE

[1]: This is a Reference by Her Majesty's Attorney-General, under section 36 of the Criminal Justice Act 1988. Those familiar words conceal what, in truth, was a most complex and difficult sentencing decision, in a case which flowed from the death of a young man aged 22, in a disastrous and tragic accident at work.[2]The offender in this case is Michael Shaw. He is 45 years old. He was born in January 1961. He is a man of previous positive good character. On 7th July 2006, in exceptional circumstances, at Winchester Crown Court, before Owen J, he pleaded guilty to manslaughter on the grounds of gross negligence.[3]There had been a trial on this charge which lasted between 14th June and 5th July. There were a further seven counts associated with offences against the Health and Safety at Work Provisions.[4]The jury convicted the offender of the Health and Safety offences; they were unable to reach a verdict on the manslaughter charge. The prosecution gave notice that they would seek a retrial on the manslaughter charge and on the following day the offender indicated that he intended to change his plea to guilty. On the day after, 7th July, he pleaded guilty. After hearing mitigation, Owen J sentenced him to 2 years' imprisonment, suspended for 2 years, for gross negligence manslaughter and imposed fines on him totalling £40,000 for the Health and Safety at Work counts of which the jury had convicted him.[5]A brief summary of the case is that at the stone cutting factory, which the offender effectively owned and ran, a young man, who had been inadequately trained, was fatally injured at a large cutting machine. An investigation into this tragedy revealed that a light beam safety device, which would have operated to prevent the accident, had been rendered inoperative.[6]In more detail, the facts emerge very starkly. The offender was the founder and managing director of a company known as Change of Style Ltd. The business involved at least, in part, the manufacture of fireplace surrounds and kitchen work surfaces using stone and marble. In 1985 the business was based at Ridley Farm, near Southampton, and then it moved to a new site, on an industrial park in Totton. By 2003 the company was reporting a turnover of £1.64 million, with projected turnover for the following year in excess of £1.8 million.[7]Although the offender was styled Managing Director, which is what he was, he was in fact a hands-on boss. He had a direct approach to the business. He was personally heavily involved at the shop floor level, observing what went on, supervising what went on, no doubt urging and encouraging those who worked for him and, it should be added, using the machinery himself and taking an active part in the manufacturing process.[8]By the time of the accident in May 2003 the company had three stone cutting machines known as 'CNC machines' installed and working. The machine at which the fatality occurred was purchased and installed in August 2000. The machines are designed to cut out and fashion marble, granite and other materials. They are fully automated. They operate in response to computer programmes set by operators. Those who use the machines -- and we take this very briefly -- load the stone onto the work surface and then, from the control box, set the programme running; they then wait until the programme finishes, remaining available to deal with any problems that might arise, and finally, the unfinished product is unloaded.[9]These three machines were designed, built and installed by an Italian engineering company known as Z Bavelloni. The machines had been manufactured and supplied with three safety devices or features. Photo electrical cells which emit a beam of light the length of the rear and front working side of the machine guarded what is described as "the danger zone" when the machine was in operation. If broken, because somebody stepped across that beam and into the danger zone, the device worked so as instantaneously to bring the machine to a halt. There were also raised skirts or skirt guards which ran the length of the front and rear working sides of the machine, and their purpose was to protect against debris from the cutting progress or from cutting tools, flying off and striking anyone in the vicinity. Contact switches had been fitted to ensure that the guards were not lowered during periods of operation. Finally, there were emergency stop buttons placed at strategic locations around the machine.[10]The operating manuals for the machines clearly defined "the danger zone" and contained this stark warning:
"It is strictly forbidden for the operator to stay in the 'danger zone' while the machine is working"
. There was also a warning that the safety guards should not be removed because they were designed to protect against injury from moving parts. The light beam devices on these three machines were rendered inoperative by engineers supplied with Bavelloni at the time when the machines were fitted.[11]At the end of the trial, when passing sentence,

the judge observed:

"...it was clear on the evidence before the jury that it was the Bavelloni engineers who had disabled the photoelectric beams, both on the machine in question and on the two other Bavelloni machines owned by Change of Style. The evidence was overwhelmingly to the effect that the beams had not been functional from the point of installation. The control switch for the control guards had also been tampered with and the cutoff system had been bypassed."
So in effect all the safety devices were out of action.[12]The prosecution suggested that the reason for the removal of these safety devices was that when activated they would lead to delay in the production process. By removing the safety devices, those employed as stone cutters could approach the danger zone in order to load or unload the machine, or indeed deal with problems which arose while the machine was still in operation.[13]As the stone cutting programmes could last as long as one-and-a-half hours, and the consequence of switching the machine off in mid-cycle would be a restart in the entire computer programme, one can see how time would be saved if the devices were removed. It is right, however, to record that again, according to the judge's findings, he considered that it would be appropriate to sentence the offender on the basis that his:
"...fault lay in failing to recognise the danger that the machine presented in its unguarded state rather than in recognising the danger and deliberately deciding to run the risk."
[14]However, there was evidence that in 1999 a Mr Smith, who was an independent Health and Safety officer, visited the offender's premises and, according to his evidence, observed that the light beam device on an automated machine had been rendered inoperative. His advice to the offender was that the device should be reinstated as a high priority. He gave evidence that although he had no independent recollection of his visit to the premises, he was sure that his report referred to the CNC machine. However, in cross-examination on behalf of offender it was put to him that he was mistaken and his recommendation related to a Tekna saw. The witness rejected that suggestion.[15]It is agreed between counsel for the Attorney-General and counsel for the offender that the realistic answer to this issue can be encapsulated in the conclusion that this visit did not result in the offender reinstating the safety device on the CNC machine. However, the judge appears from the way in which we have narrated his sentencing remarks, to have taken the view that there could not have been a previous warning in relation to the CNC machine. What, however, is less clear is whether or not we should draw from that the conclusion that Mr Smith had not given any warning. It would be impossible from the way in which the case was advanced on behalf of the offender to conclude that no warning at all had been given. What was put on his behalf was that something may have been said, but it related to the Tekna saw. Accordingly and in summary, we approach this part on the case on the basis that, at some stage, a Health and Safety officer observed that on some machines, other than a CNC, the light beam device had been rendered inoperative and that he had asked for it to be reinstated as a high priority.[16]Apart from this particular piece of evidence going back, now to 1999, it was clear and reasonable to infer from the jury's guilty verdicts on the charges relating to the Health and Safety at Work Act that the offender had very little time for Health and Safety issues. There was a lack of proper training and risk assessment made by the company in relation to its machinery and work practices. There was also evidence, consistent with those findings, of an occasion when the offender told a manager at the works:
"Basically if we implemented Health and Safety to the letter of law it would cost too much. The company couldn't afford it and it would close us down. We had to think about production first."
[17]Evidence was given at trial that the engineers from, or acting on behalf of Bavelloni continued to make frequent visits to the premises during the 5 years or so between the original installation of one of the CNC machines and the date of the accident. The number of visits was estimated at approximately 50. During the visits no effort was made to reinstall the safety features or to make them operative. There was further evidence that some other manufacturers, five or six in number, adopted similar practices to the offender in respect of the CNC light beam device.

The judge noted that:

"...following the fatality inspection of other sites at which such machines had been installed revealed a number of other machines in which the photoelectric beams had been disabled in the same way. Whilst that does not in any sense excuse your gross negligence it does serve to put it into a wider context."
[19]The judge accepted the submission made on behalf of offender that, although was guilty of gross negligence manslaughter, there were others who bore a degree of responsibility. As he pointed out, however, that did not relieve the offender of his responsibility, but served to put his criminal negligence into its proper context. We are told today, having asked, that there has been no report of a similar accident, but it is very alarming to hear that there are a number of companies who, at any rate prior to this ghastly disaster, had waved aside sensible safety precautions for their employees.[20]The victim of this tragedy was David Bail. He was 22 years old at the time of his death. He had various jobs of a manual and unskilled nature before he began work at Change of Style in November 2002. His training was described "in house" which in effect meant 'on the job'. Little was said about risks or the safety aspects of the machine or, and this is not without significance, the absence of the safety features.[21]He was put on to one of the stone cutting machines with full responsibility for its operation. In common with other employees, he was known to approach and enter into the "danger zone" for various reasons while the machine was in operation. As inevitably happens it had long become the practice that all those employed on stone cutting, in the absence of instructions not to do so, copied the example set by others. No doubt young David Bail followed the example of those who were more experienced in the work.[22]On 13th May 2003 he was working on the late shift. Shortly after 7 o'clock in the evening, while he and his colleagues were having refreshment, a noise was heard coming from one of the CNC machines. It appeared to be a tool fallen out of place, but nothing of any particular importance or problem, save that it would have involved replacing the misplaced tool and then re-starting the automatic programme with, as already described, the result that if the programme had to be rerun from the beginning there would be some delay.[23]We have given sufficient detail of the way in which this system worked for what happened afterwards to be readily understood. If the light safety device had been working in order, David Bail would not have entered "the danger zone". He would not have tried to clear up the problem in the machine without first stopping the programme. The risk that he faced was that while changing the tools, the head of the machine could move rapidly and suddenly and create a trapping point between the head of the machine and the pillar of the corner of the machine. Doing his duty, he responded to the noise and went to investigate it to clear up the problem. He entered "the danger zone" and became trapped by the head when the machine head suddenly moved forward. He suffered catastrophic head injuries; he never regained consciousness and he died a few hours later in hospital. With the light safety machine in operation, of course, he would never have gained access to the danger zone and he would not have sustained those fatal injuries.[24]The offender was arrested and interviewed in late November 2003, 6 months later. At that time he sought to distance himself from the events by blaming the Bavelloni engineers and indeed others. He also falsely claimed that he had not known that the light beam safety devices had been rendered inoperative. A year later, in November 2004, he was charged with manslaughter and related offences under the Health and Safety at Work Act 1974. By then he had had a heart attack and had been hospitalised and had been put on to and still is on daily medication for his heart condition.[25]The trial took place in June 2006. There was a delay, as we were told, because of the unavailability of a High Court judge to sit in Winchester for such a long trial, as was anticipated. These delays were, as we have already observed, most unkind to the victim's family and indeed to the offender and his family.[26]While the jury was in retirement the judge was provided with a bundle of material about the financial position of the company. In summary, the position was as follows: for the year ended March 2003, the company reported a before tax profit of £71,000. In the tax year ended March 2004, that is the year following the death of the deceased, the company sustained a loss of just over £200,000. For the year ending March 2005, notwithstanding a substantial increase in turnover, the company reported a net profit of £10,000. As at July 2006 the accountant reported:
"...the company is just holding its own, making a small net profit or loss each month and breaking even over a longer period of time."
[27]This aspect of the position of the company was dealt with in his sentencing remarks by the learned judge. Among other things he observed:
"If I now send you to prison the overwhelming probability in my judgment is that the business will fail, putting in jeopardy the livelihood of all those whom you employ and their dependents. The repercussions of a sentence of imprisonment at this point go far beyond you."
He then asked rhetorically:
"Should they too suffer the consequences of your criminal responsibilities for the death of David Bail?"
[28]The importance of that observation to the subsequent sentence is this: the judge had summarised all the relevant features of the case, aggravating and the mitigating features and the issues which would serve to provide the appellant's personal mitigation. He then dealt with the position of the business and his final remarks having passed sentence can be seen in these words:
"Finally I should say in conclusion that the fact that I have suspended the sentence of imprisonment that I have imposed upon you Michael Shaw was solely the consequence of my concern that the affect of such an immediate sentence of imprisonment would have upon your employees."
That observation, and the basis on which the sentence was suspended is criticised on behalf of the Attorney-General as an inappropriate consideration, or an insufficient consideration to have justified the suspension of the sentence.[29]As to that issue, of course, we have to bear in mind that although the judge made clear that he attached great importance to the destruction of the company and the loss of employment prospects for the employees, he was doing it in the context of all the other matters of mitigation, which he had dealt with in detail and to which, having summarised the aggravating features we shall come.[30]The aggravating features of this case are plain. A young man lost his life because of the gross negligence of his employer. By way of emphasis this was not negligence sufficient to be dealt with by way of monetary compensation. this was criminal negligence. The offender ran his business without proper regard for Health and Safety issues. The warning in 1999 made its own point. The convictions returned by the jury of a number of offences of contravention of the Health and Safety provisions reinforced the same point. There are, of course, occasions when we read, probably superficially, or perhaps in superficial reports, about Health and Safety interfering in a disproportionate way with ordinary life. But, again, we emphasise that Health and Safety issues in this place of employment were literally a matter of life and death.[31]Here, at the peril of death, safety was ignored for business convenience. The machine on which the deceased met his death and the other two machines (identical machines) had in fact been dangerous and potentially lethal from the date of when they were first installed some years earlier.[32]It is true that the offender did not personally disable the safety devices on the machine. They were disabled when they were installed. In subsequent visits they were never put into working order by the installer. But as the offender acknowledged by his guilty plea, and he has never resiled from his guilty plea, the bypassing of safety procedures in his premises was his responsibility and he was criminally culpable.[33]The other side of the coin is that the appellant was able to point to significant features of mitigation. He was of previous good character. That was a matter of genuine positive good character; it was not simply a matter of avoiding conviction. He had pleaded guilty. This plea of guilty occurred in most unusual circumstances and, in our judgment, was a very significant piece of mitigation. It was not a guilty plea tendered at the first available opportunity. Indeed a trial had been completed.[34]If one strictly followed guidelines, that would lead to the conclusion that the mitigation afforded by the guilty plea was slight or trivial. But the whole point about guidelines is that that is what they are - they cannot cater for cases which are exceptional, which this one was. This offender, having had a trial, in which the jury was unable to agree and therefore, by definition, some members of the jury, at any rate, were not satisfied that guilt had been proved, elected to bring the entire proceedings to a halt by pleading guilty and accepting responsibility. He wrote a letter which

the judge read out and which we shall read out, at any rate, in part to include in this judgment:

"Due to the hung jury verdict I have had a few days to take stock of my position as Managing Director of Change of Style Ltd and the responsibilities, which I hold to David Bail's family and my employees. I realise it is my responsibility to provide a safe working environment which unknowingly I had failed to do. I feel it is in the interest of all concerned not to prolong the agony this has caused to David's family, the uncertainty and pressure caused to my employees and ex-staff. On a personal level I do not wish to put my family through any more heartache in the fear of me suffering another heart attack and ill health."
That lead to the further considerations which the judge had to bear in mind. After the offender had been arrested and interviewed and before he was charged, his health had suffered. We have described the heart attack with its continuing consequences. The business was certainly in much poorer state than it was. As we now know, and this was not before the judge, the offender's marriage has also ended. No doubt all these different factors contributing to the stresses and strains on health and business and private life.[35]It is submitted to us that the power to suspend a term of imprisonment in this case, which arose under section 118 of the Powers of Criminal Courts (Sentencing) Act 2000, simply did not arise. This section reads:
"A court shall not deal with an offender by means of a suspended sentence unless it is of the opinion- (a) that the case is one in which a sentence of imprisonment would have been appropriate even without the power to suspend the sentence; and (b) that the exercise of that power can be justified by the exceptional circumstances of the case."
The Act does not define "exceptional circumstances"; neither do any of the authorities in this Court. They simply address individual cases where exceptional circumstances were or were not established. Effectively by definition, exceptional circumstances are, in truth, fact specific to an individual case. But we have illustrated the basis on which the judge concluded that he should suspend this sentence, although, as we emphasise, his remarks have to be seen in the overall context of the mitigation which was available to the offender.[36]It seems to us, dealing with the matter broadly, that there will be occasions when it may well be relevant for a sentencing court to take account of the consequences of a sentence of imprisonment to a business run by the offender. We can think of a number of different examples where that may be appropriate. We certainly do not rule it out. But the problem with that approach in a case like this is that the crime for which sentence had to be imposed arose directly from the offender's misconduct of his business which unfolded disastrously on an employee. So different considerations apply to cases like this. If it were otherwise, many small businesses, dependent, as this one was on a "hands-on boss" -- and we use the colloquialism quite deliberately -- could operate without proper regard to the consequences of gross negligence resulting in death. To take the boss away would almost certainly damage the business, and might therefore put innocent people out of work. But if that consideration were to produce a suspended sentence in each case like this, there would be no particular incentive on the bosses in most small organisations to see that Health and Safety measures were complied with. As this case shows, it is imperative that Health and Safety provisions should be observed. It can be, as we have said already, a matter of life and death. So in situations like the present, it seems to us that the consideration that the result of an immediate sentence of imprisonment would be the collapse of the business and unemployment for employees cannot normally be treated as an exceptional circumstance.[37]There is, as we have acknowledged, much more to the mitigation than the collapse of the business, and many of the features which we have identified are typical of many defendants who have failed to comply with their health and safety obligation. They are decent men and women trying to run sensible businesses, taking dangerous shortcuts in order to keep production going. They are, as we say, decent people, working the business, no more and no less than that. They do not normally get before a court. That is an important feature in cases like this. The mitigation available to this offender is personal to him, but there are many in his position who have been found guilty of criminal negligence about whom all these things can be said. In our judgment, it was not appropriate to suspend this sentence, and to that extent the sentence was unduly lenient.[38]That then leaves us with this position: if the judge was not justified in passing a suspended sentence, and such a sentence was wrong in principle, it would, we believe, be wrong in principle for this Court to leave in place a sentence which has been found to be wrong. We shall not do so.[39]What should now happen? We have read the pre-appeal report. We recognise, and it is fair to the offender to repeat the genuineness of his remorse and the impact that the death of this young man has had on him. We recognise, too, the absence of good health and the other personal circumstances which have now overtaken him. We bear in mind that this is a new sentence. That is sometimes described as double jeopardy. Double jeopardy can be given all sorts of meanings. We shall explain how we approach the issue in this case.[40]The human problem has to be faced that this disaster happened over 3 years ago. The offender was told that he would be charged in November 2004. He has waited for 3 years after the accident before his trial. He pleaded guilty in the exceptional circumstances we have described and the judge did not pass an immediate custodial sentence. Now, we have come to the conclusion that we cannot avoid an immediate custodial sentence. We bear in mind all the delay and the way in which this case has unfolded; that we are dealing with a man of good character who now, having been told that he would not be going to prison will, in consequence of our order, be going to prison for the first time.[41]In those circumstances, we have come to the conclusion that the appropriate sentence to be passed on this offender is one of 15 months' imprisonment, which we shall order to run today.

SIR IGOR JUDGE: Is your client here, Mr Birkett? Would you stand up, please. Michael Shaw, you have heard the judgment of the Court. The effect of our order is that you will serve half that time and you will then be released on licence. This has not been an easy case for anyone and not an easy case for you. We have read the report with care. There is an element in this case which we want you to have in mind: it is called expiation. This disaster has been with you for 3 years now. Serving your sentence will help to expiate the undoubted sense of guilt that you suffer from. But you must now go. The sentence will be ordered to run from today. The Court will adjourn for a few minutes so that everybody who needs to do whatever they have to do now can do so. Sit down for a moment, please.

[43]MR BIRKETT: Can I raise one matter? So far as the financial penalty, is it the Court's intention that that should stand at the level that was imposed?

SIR IGOR JUDGE: Yes. Thank you.