Holtom, R. v [2010] EWCA Crim 934

[2010] EWCA Crim 934Case No 2009/04257/A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 20 April 2010
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE DAVID CLARKE
and
MR JUSTICE LLOYD JONES
__________________
- v -
Between
COLIN CHARLES HOLTOM__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone No: 020 7404 1400; Fax No 020 7404 1424(Official Shorthand Writers to the Court)__________________Miss A L Cotcher QC appeared for AppellantMr M J Bowyer appeared for Crown____________________J U D G M E N T
[1]Adam Gosling was 15 years old when he died on Monday, 23 April 2007, almost three years ago. He was killed instantly by the collapse of a brick wall which he was taking part in demolishing while working for the appellant in his groundwork and landscaping business. Adam was the youngest victim of a fatal accident in the building industry in this country.[2]The appellant is now aged 65; he was then aged 62. On 14 July 2009, at the Central Criminal Court, before His Honour Judge Moss QC, the appellant pleaded guilty to manslaughter by gross negligence. He had previously stood trial together with Darren Fowler, who was the main contractor for the work but who had subcontracted it to him. After some days of that trial, Fowler pleaded guilty to the counts against him. The jury were discharged so that the appellant could be retried alone. At the outset of the retrial, and having been advised by fresh leading counsel, he pleaded guilty on a factual written basis to which we shall refer. On 20 July 2009, he was sentenced to three years imprisonment, a sentence against which he appeals by leave of the single judge.[3]The facts were these. In late 2006 Mr and Mrs Conway, who lived in a house in Hadley Wood, decided to have extensive landscaping work done. They accepted a quotation from Mr Fowler's company. Mr Fowler was disqualified from managing or promoting a company at the time. That formed part of the foundation for the prosecution against him. The total contract price was very substantial. The work included the demolition of an old pool house and the construction of a more substantial one. The appellant, to whom the work was sub-contracted, employed two full-time labourers, but also took on casual labourers whom he paid on a cash-in-hand basis. They included the Gosling brothers: Dean Gosling (18 at the material time), an older brother Carl, and their younger brother Adam. Because Adam was aged 15, he should not have been working, but there was evidence that he had said that he was 16. Adam was paid at the rate of £25 a day; Dean was paid at the rate of £35 a day.[4]Behind the old pool house, and at the extremity of Mr and Mrs Conway's property, was a four or five foot high brick boundary wall. Beyond that wall, and at a lower level in the neighbour's garden, was a substantial shed. Following the demolition of the old pool house, Mr Fowler (the main contractor) informed both the owner and the appellant that the brick wall was unstable. A large vertical crack ran from top to bottom, roughly at the point where the neighbouring gardens beyond adjoined one another.[5]On Friday 20 April 2007 work was undertaken to construct a concrete foundation slab for the new pool house. A percussive instrument ("a whacker plate") was used to compact the hardcore before pouring on the concrete. That may have made the wall yet more unstable. At a site meeting on that evening Mr Fowler told the appellant that the wall was unstable and that the following week it would have to be taken down "brick by brick or course by course". Carl and Adam Gosling were on site at that time. Dean (the middle brother) was not at work on that day.[6]On the following Monday, Carl (the eldest brother) did not go to work, but Dean did. Thus Dean (aged 18) and Adam (aged 15) were working for the appellant on that day. During the morning the appellant instructed the two boys to demolish the wall. The boys wore jeans, tee-shirts and trainers. If protective equipment such as hard hats and steel-capped boots were available, they were not required to wear them. The appellant provided a sledgehammer and a pneumatic "Kanga" hammer to accomplish this work. He then moved to the front of the premises to do other things, leaving the two young men, 18 and 15 years of age, to demolish the wall entirely unsupervised. A risk assessment document should have been produced by Mr Fowler as the main contractor. He produced one after the event. Furthermore, the appellant had no employers' liability insurance at the time -- something which he sought after the event.[7]The wall started to lean away from the property towards the shed in the adjoining lower level garden. Dean tried to hold on to the top of the wall to prevent it toppling away from him. He told Adam to run to the front of the premises to speak to the appellant. Dean's account subsequently was that when Adam returned, having spoken to the appellant, he said that the appellant had told him to go down to push the wall back from the other side. The basis of plea, to which we shall come, shows that the appellant never accepted that. The appellant did not go to see the wall for himself.[8]Adam jumped down into the neighbouring garden. The wall toppled towards him and pinned him between the falling wall and the shed. We have clear photographs of the scene taken after Adam's body had been removed from that position. It is apparent that he died almost immediately from severe head injuries. When Dean ran to the appellant, his account was that the appellant suggested that Adam should not have gone behind the wall. Dean's account is that he thereupon accused the appellant of lying. That remained a matter in issue.[9]The emergency services arrived within minutes. Adam had been killed almost instantly.[10]Police and Health and Safety Executive investigations demonstrated that had there been proper supervision this accident would not have occurred. A catalogue of errors were identified. Protective equipment was not worn, although it is clear that the wearing of a hard hat would have had no effect on saving Adam from what occurred.[11]The written basis of plea read as follows:
"1. The [appellant] pleads guilty to count 1, manslaughter, in that he accepts he unlawfully killed Adam Gosling by gross negligence, namely breaching his duty of care by failing to provide adequate supervision in relation to the task or the demolition of the brick wall .... 2. The [appellant] denies that he on any occasion told Adam Gosling (i) to go onto the neighbouring property to collect any bricks from the wall or to go behind the wall at all; (ii) to push or pull the wall."
No Newton hearing was held. The Crown indicated that they did not accept that basis of plea. Thus the issue of what instructions were given to Adam was not resolved.[12]In his sentencing remarks the judge said that he did not reliably know what instructions were given. Accordingly, he must be taken to have passed sentence on the basis that the appellant's account on this point was true. However, it is undoubtedly the case that, when told that the wall was leaning, the appellant did not go at once to see for himself, but left it to the two inexperienced youngsters to cope with what could be a highly dangerous situation.[13]The appellant was of previous good character. There were before the court positive testimonials as to his good character. That is a common feature of offences of this sort. It is often an offence committed by a hard-working, law-abiding person who is not normally seen in the criminal courts.[14]A report from the appellant's general practitioner dealt with the stress, depression and anxiety from which the appellant suffered arising from the aftermath of the accident and these proceedings. It is submitted that he was remorseful, and that his plea of guilty is some indication of that. However, he was recorded by the general practitioner as saying that he felt that a prison sentence would be most unfair and that he would not be able to cope with it. The general practitioner agreed that it would be stressful for him, but did not think that it would have an impact on his physical health.[15]The judge read, as we have read, a moving account of the impact of Adam's untimely death on his parents, his elder brothers, his younger sister, and the wider family. The circumstances were distressing: Dean witnessed the event, and Carl blamed himself for not going to work that day. Although Adam was only 15, he had effectively finished his schooling. He was willing, strong and keen to gain work experience. The family's distress was compounded by the very long time it took before this case came to trial, and then once it reached that stage the long wait before the appellant acknowledged his responsibility. The family will, we trust, realise that the sentence imposed by the court must not be compared to the value of the life lost, which was priceless.[16]The judge's sentencing remarks were full and careful. He told the appellant that he must bear the lion's share of the responsibility for the tragedy. He said:
"I am satisfied that you adopted a cavalier and thoroughly irresponsible attitude to those brothers' safety while they were under your control. .... The fact of the matter is that you left them alone quite unsupervised to carry out a task which you knew perfectly well was inherently dangerous if not performed properly. .... I do not reliably know exactly what instructions you gave to Adam when he came running to you for advice when the wall started to topple. Perhaps you did not order him to go to the other side of the wall as, in fact, he did. But what you did do, was to stay where you were and continue with what you were doing, rather than hurry to the scene of the problem and ensure the safety of your young workers. Your actions, or lack of them, on that day were, as you finally acknowledged, criminal."
The judge went on to say that, but for the plea of guilty and the appellant's good character, he would have imposed a sentence of four years imprisonment. As it was, giving credit, he imposed a term of three years imprisonment.[17]The submission of Miss Cotcher QC for the appellant is that the starting point was here set too high for an offence of gross negligence manslaughter by omission rather than commission, and that the judge failed to allow sufficient discount for the available mitigation.[18]Our attention is drawn in the written submissions of both Miss Cotcher and Mr Bowyer, who appears for the Crown, to a number of decisions of this court in cases of gross manslaughter following fatal accidents in the work place. They include R v Kite [1996] 2 Cr App R(S) 295 (which did not involve employees); R v Crow [2002] 2 Cr App R(S) 219, where 15 months imprisonment was imposed for the manslaughter of a farm worker who, untrained, was permitted to drive a farm machine, and in which for exceptional personal reasons the court suspended that sentence; R v Roys [2009] 1 Cr App R(S) 91, where, for negligence in not checking a machine, a twelve month sentence was upheld following an earlier plea of guilty; and Attorney General's Reference No 86 of 2006 (R v Shaw) [2007] 1 Cr App R(S) 101, in which, for an omission to put safety equipment in place for the use of a machine, this court considered that a suspended sentence which had been imposed was unduly lenient and imposed 15 months imprisonment. Other cases were also drawn to our attention, all of which we have considered. Their facts are all different, but they show that the sentence imposed in this case was significantly longer than those imposed in either cases.[19]The sentencing judge was faced with a case with very substantial aggravating features. Because of his age, Adam should not have been employed at all, except in the strictly regulated circumstances in which the employment of children is permitted. The other aggravating features were spelt out by the judge. The most striking of them is that the appellant did not even go to the scene when told of the danger, and that the wall was collapsing. Furthermore, in the sentencing process for homicide cases, including deaths on the road, there is now a greater emphasis to be placed on the fatal consequences of a criminal act. The Lord Chief Justice explained the reason for this in some detail in the recent case of R v Appleby and Others [2009] EWCA Crim 2693 (a case altogether different from the present); see particularly paragraph 13, and in relation to deaths on the road, paragraph 20. It seems to us today that a similar consideration applies to cases of manslaughter by gross negligence in the workplace.[20]The court now also has the advantage of the recent Definitive Guideline on Corporate Manslaughter and Health and Safety Offences Causing Death. Although this relates to organisations rather than individuals, and to financial penalties, it helpfully sets out at paragraphs 6, 7 and 8 relevant factors affecting seriousness with examples of aggravating and mitigating circumstances. It seems to us that the judge in the present case, albeit without the advantage of that guideline, had regard to all the relevant factors. He was right in our judgment to hold that, notwithstanding that this is a man in his sixties, the offence merited a sentence of four years imprisonment. He was right, accordingly, to impose three years imprisonment following a plea of guilty. It was a justifiably severe sentence. The appeal against it is therefore dismissed.