Merlin Attractions Operations Ltd R. [2012] EWCA Crim 2670

[2012] EWCA Crim 2670Case No 201203275 A7
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Warwick Crown Court
HHJ Godsmark QC
T20100366
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/12/2012
Before
LORD JUSTICE GROSS MRJUSTICE GRIFFITH WILLIAMSMR JUSTICE SWEENEY
Between
The QueenRespondentMerlin Attractions Operations LimitedAppellant
Mr Keith Morton QC (instructed by Kennedys) for AppellantMr Barry Berlin (instructed by Warwick District Council) for RespondentHearing Hearing dates : 2nd August 2012
Judgment

Introduction

[1]The construction of Warwick Castle began in 968 AD. It is now a Grade 1 Star listed building, and parts of it are scheduled ancient monuments under the Ancient Monuments and Archaeological Areas Act 1979.[2]The Castle has been open to the public since at least the early 20th century, and was acquired by (what is now) the appellant company in 1978. Since then there have been in the order of 20 million or more visitors.[3]The principal bridge used by visitors for access to and egress from the Castle is the Barbican Bridge. It has stone parapets on either side which are about 3 feet high.[4]However many visitors use another bridge called the Bear and Clarence Bridge, which (having stood for more than two centuries) is one of the scheduled ancient monuments at the Castle. It crosses a dry moat, is 45.6 feet long, and varies in width from 10.66 feet to 11.58 feet. At the material time there was only a 15 inch high parapet wall along either side of the bridge, and the drop from the top of the parapet wall to the bottom of the moat was 13.45 feet. However, the extent of the drop was, at that time, obscured by trees and bushes growing in the moat.[5]George Townley, who was aged 72, was one of the visitors to the Castle on Sunday 9 December 2007. At about 4.30 pm he was leaving, via the Bear and Clarence Bridge, when he tripped over the parapet wall on his left hand side, fell head first into the moat, and thereby suffered fatal head injuries.[6]In the result, on 17 April 2012 the appellant stood trial before HHJ Godsmark QC and a jury in the Crown Court at Warwick upon two Counts, as follows: Count 1: Being an employer failed, on or before 9 December 2007, to conduct its undertaking to ensure so far as was reasonably practicable the safety of persons not in its employment who may be affected thereby, contrary to sections 3(1) and 33(1)(a) of the Health and Safety at Work etc Act 1974. Count 2: Failed, on or before 9 December 2007, in the employer’s duty to make and give effect to such arrangements as were appropriate for the effective planning, organisation, control, monitoring and review of preventive and protective measures within its undertaking, contrary to Regulation 5 of the Management of Health and Safety at Work Regulations 1999 and section 33(1)(c) of the Health and Safety at Work etc Act 1974.[7]On 24 April 2012 the appellant was convicted of both offences and was sentenced to a fine of £300,000 plus a victim surcharge of £15 on Count 1, and to a fine of £50,000 on Count 2 – making a total fine of £350,015. In addition, the judge ordered the appellant to pay £145,000 of the £159,000 costs sought by the prosecution.[8]The appellant now appeals against sentence by leave of the single judge.[9]The appeal hearing took place on 2 August 2012 when submissions were made on behalf of the appellant by Mr Keith Morton QC. The respondent had not been invited to attend. At the conclusion of the hearing we invited the respondent to reply by way of written submissions. We now have the benefit of such submissions by Mr Barry Berlin (who prosecuted at trial), and of a written response by Mr Morton. We are grateful to both counsel for their assistance.[10]As to Count 1 the Particulars of Offence ultimately relied upon by the respondent against the appellant were that:
“(i) It failed to take suitable and sufficient measures to prevent or protect visitors, when accessing to or egressing from the said Castle via the Bear and Clarence Bridge, from falling a distance likely to cause them injury; and/or (ii) it failed to provide any or any appropriate barrier or similar means of protection to protect visitors from falling off the said Bridge; and/or (iii) it failed to warn by signs, delineation or otherwise of the risk of falling from height off the said Bridge; and/or……. (v) it failed to conduct any or any suitable and sufficient risk assessment relating to risks associated with visitors accessing to and/or egressing from the said Castle via the said Bridge.”
[11]As to Count 2, the Particulars of Offence relied upon by the respondent against the appellant were that:
“(i) It failed to adopt a systematic approach to the identification of hazards, risk and assessment of risks in respect of access and egress across the Bear and Clarence Bridge over the dry moat to and from the said Castle; and/or (ii) it failed to establish priorities and performance standards for the completion of risk assessments in respect of access and egress across the said Bridge and the implementation of prevention and protective measures, which at each stage minimises the risk of harm to people; and/or (iii) it failed to monitor how effectively risk was controlled as there were no, or no adequate, routine inspections in respect of access and egress across the said Bridge and/or checks to ensure that preventive and protective measures were in place and effective; and/or (iv) it failed periodically to review the preventive and protective measures including elements of planning and monitoring relating to access and egress across the said Bridge.”
[12]The evidence relied upon by the respondent included the following:(1) When special events, such as Carol Concerts, were held at the Castle temporary side barriers were erected on the Bear and Clarence Bridge for fire safety purposes as part of the Entertainment Licence, first granted in 1995.(2) In 2002 the respondent had invited Philip Mitchell of Health and Safety Engineering Consultants Limited to conduct a fabric risk assessment for the Castle, and he had produced a report in 2003. The assessment was “limited to the fabric of the castle only”, but it raised a question over whether side barriers were required for the Bear and Clarence Bridge at normal opening times.(3) The report was never shown to the respondent’s Health and Safety Officer, nor to his line manager – which the Health and Safety Officer conceded to be a serious systemic failure. Likewise, one of the respondent’s witnesses conceded that, whilst the report did not contain a specific recommendation for side barriers, he would have expected the report to be read in its entirety and action taken accordingly.(4) Despite the mandatory requirement in the 1999 Regulations to do so, the respondent had failed to conduct any suitable and sufficient risk assessment of the Bear and Clarence Bridge, notwithstanding its importance in connection with access to and egress from the Castle. Had it done so it would have recognised the serious and foreseeable risk to members of the public, including children playing on the bridge and the elderly - given the low parapet wall over what was in fact a masked high drop.(5) There were no warning signs about the drop in the immediate vicinity of, or on, the bridge.(6) The fact that Mr Townley was walking normally and the shock of witnesses who saw him fall on discovering the height of the drop.(7) Expert evidence confirming the fact that the drop was masked, and indicating that for someone who had entered the Castle via the Barbican Bridge and then exited via the Bear and Clarence Bridge there was a “nasty surprise” within the meaning of that phrase in guidance published in Managing Visitor Safety in the Countryside.[13]The respondent asserted that, although literally millions of people had walked across the Bear and Clarence Bridge without incident over the years since the appellant had become responsible for the Castle, the risk of danger was so obvious that the lack of incident was simply the result of appellant’s good fortune, not an indication of lack of risk.[14]The appellant’s case, in contrast, was that there was no material or foreseeable risk for people crossing the Bear and Clarence Bridge – as illustrated by the many millions of people who had crossed over it since 1978 without mishap, including Environmental Health Officers and the Head of Building Control at Warwick District Council, who had not raised any concerns. The appellant asserted that the prosecution was overbearing and wrong.[15]The evidence relied upon by the appellant included the following:(1) It had a very good safety management system and a good safety record.(2) There were many hazards at the Castle which were safely managed – in that there was a system for undertaking risk assessment and more than 200 written risk assessments had been done.(3) Whilst there had been no written or other formal risk assessment in relation to the Bear and Clarence Bridge, it was obviously a bridge; the surface had been maintained to a high standard; temporary side barriers were only required under the Entertainment Licence if there were going to be more than 2,200 people in the courtyard of the Castle; and hence no further steps to protect visitors were necessary or reasonably practicable.(4) There was no guidance specifically directed to ancient monuments, but the guidance published in Managing Visitor Safety in the Countryside specifically recognised that it might not be desirable to alter scheduled monuments and listed buildings by erecting barriers.(5) Had a written or formal risk assessment been undertaken it could quite properly have concluded that no barriers were necessary.(6) Whilst the Entertainment Licence applied if there were more than 2,200 people in the courtyard of the Castle for a performance, the average daily attendance at the entire castle (which includes extensive grounds) was in the order of 2,000 – with the numbers being staggered across the day.[16]The appellant accepts that, by its verdicts, the jury necessarily concluded that use of the bridge did expose people to a material and foreseeable risk of harm, and that it was reasonably practicable for the appellant to have done more than it did to reduce that exposure – whether by barriers or warning signs (albeit that the latter would not have prevented Mr Townley from stumbling and falling).[17]In accordance with R v Friskies Petcare UK Ltd [2000] 2 Cr. App. R. (S.) 401 the respondent served a schedule setting out what it asserted to be the aggravating features of the offences, as follows:
“1. Fatal accident to George Townley aged 72 years resulting from serious breaches of health and safety duty. 2. The company’s failures substantially caused the accident/death. 3. The accident was entirely preventable. 4. The breach of duty occurred over an extended period of time. It was not an isolated lapse. 5. It was common practice for the public to use this unguarded bridge over a 15’ dry moat. 6. There is a significant public element as public safety at the attraction is entrusted to the company – see R v Jarvis Facilities Ltd [2006] Cr App. R (S.) 44 CA per Hedley J at para.11. 7. The company failed to comply with many mandatory health and safety regulatory requirements.”
[18]The respondent accepted that, in mitigation, the appellant was entitled to rely upon the fact that it was a substantial and generally responsible company, and that it had a good safety record.[19]The appellant relied, in addition, upon the following mitigating features:(1) The fact that, generally, it took its health and safety responsibilities very seriously, and had good health and safety systems in place.(2) Its immediate erection, following Mr Townsley’s fall, of temporary barriers approved by Warwick District Council.(3) Its co-operation with the respondent.(4) Its prompt acceptance of responsibility – in that (although contesting guilt) it gave an undertaking to the Coroner that, subject to the approval of English Heritage and Warwick District Council, it would erect a permanent barrier regardless of the outcome of the prosecution (which undertaking was repeated to the Judge).[20]Finally, and significantly, the appellant chose not to provide any evidence as to its finances.[21]Having presided over the trial the judge was entitled, in the usual way, to reach his own conclusions as to the factual basis upon which to pass sentence. In this appeal it is important, given the dispute as to the existence and extent of aggravating and mitigating features, to identify that factual basis with some precision.[22]In the light of the judge’s sentencing remarks, it seems to us that the factual basis was as follows:(1) Generally, the appellant took its health and safety responsibilities very seriously – with generally good health and safety systems in place, and with regular meetings of health and safety committees attended by representatives of all departments. Likewise the appellant expended considerable sums in order to maintain the Castle.(2) Thus its failures in relation to the Bear and Clarence Bridge constituted something of an uncharacteristic blind spot, which had fatal consequences.(3) Whilst many people, including Health and Safety Officers and others of that ilk, had crossed it over the years without incident, the Bear and Clarence Bridge was “an obvious danger” – not so much in relation to adults, but in relation to children.(4) Against the background of Mr Mitchell’s report in 2003, and of the respondent’s expert evidence, if a proper risk assessment had been carried out in relation to the bridge then barriers would have been erected.(5) There had (thus) been a serious breach of the appellant’s safety management systems in relation to the Bear and Clarence Bridge, and it had failed in its duty to take such steps as were reasonably practicable to ensure the safety of visitors to the Castle.(6) The offences were aggravated by the death of Mr Townley.(7) The offences were mitigated by the appellant’s health and safety record and general approach.(8) Whilst this was not a matter in which the fine should get into the realms of that imposed for corporate manslaughter, it was a matter where the fine had to be measured in hundreds of thousands of pounds.[23]It was against that background that the judge imposed the sentences to which we have already made reference.

The grounds of appeal

[24]It is submitted that the overall sentence did not fairly reflect, and was disproportionate to, the seriousness of the offences - given the lack of aggravating features identified in the Sentencing Council’s Definitive Guideline in relation to corporate manslaughter and health and safety offences causing death, and the appellant’s generally responsible attitude towards health and safety.

The Definitive Guideline

[25]This Guideline (referred to hereafter as “the Guideline”) applies to the sentencing, after 15 February 2010, of organisations guilty of corporate manslaughter or of health and safety offences where the offence is shown to have been a significant cause of a death.[26]The Foreword makes clear that the Guideline sets out the key principles relevant to assessing the seriousness of the offences covered (which, it notes, may involve a wide variation in culpability), and that it also sets out principles concerning the assessment of financial penalties.[27]Paragraph 6 provides that the seriousness of the offence(s) should ordinarily be assessed first by asking: a) How foreseeable was serious injury? (The more foreseeable it was, the graver usually will be the offence). b) How far short of the applicable standard did the defendant fall? c) How common is this kind of breach in this organisation? (In particular, was it isolated in extent or indicative of a systematic departure from good practice across the defendant’s operations). d) How far up the organisation does the breach go? (Usually, the higher up the responsibility for the breach, the more serious the offence).[28]Paragraph 7 sets out a non-exhaustive list of other factors which are likely, if present, to aggravate the offence. These include a failure to heed warnings or advice (whether from officials, employees or others) and injury to vulnerable persons.[29]Paragraph 8 sets out a similarly non-exhaustive list of factors which are likely, if present, to afford mitigation, namely: a) a prompt acceptance of responsibility; b) a high level of co-operation with the investigation, beyond that which will always be expected; c) genuine efforts to remedy the defect; d) a good health and safety record; e) a responsible attitude to health and safety, such as the commissioning of expert advice or the consultation of employees or others affected by the organisation’s activities.[30]Paragraphs 12 – 16 make clear that the law must expect the same standard of behaviour from a large and a small organisation, but that smallness does not by itself mitigate, and largeness does not by itself aggravate, these offences. Size is however relevant in that the means of any defendant are relevant to a fine – hence the court should require financial information about the financial circumstances of the defendant. A fixed correlation between the fine and either turnover or profit is not appropriate. The court should, however, look carefully at both turnover and profit, and also at assets, in order to gauge the resources of the defendant. Against the background of s. 164 of the Criminal Justice Act 2003, it is recognised that it is just that a wealthy defendant should pay a larger fine than a poor one. Equally, it is made clear that whilst a fine is intended to inflict painful punishment, it should be one which the defendant is capable of paying – if appropriate over a period which may be a number of years.[31]Paragraph 17 provides that if a defendant fails to provide relevant financial information, the court is justified in making adverse assumptions as to its means, and may be obliged to do so.[32]Paragraph 19 sets out a non-exhaustive list of factors that the court should, or should not, consider when assessing the financial consequences of a fine. This includes the fact that the cost of any remedial order will not ordinarily be relevant, except to the overall financial position of the defendant – as such an order requires no more than should already have been done.[33]Paragraph 22 recognises that, inevitably, there will be a broad range of fines because of the range of seriousness involved and the differences in the circumstances of defendants. It provides, however, that fines must be punitive and sufficient to have an impact on the defendant.[34]Paragraphs 23 – 26 make clear that fines cannot attempt to value a human life in money. The fine is designed to punish the defendant and is therefore tailored not only to what it has done but also to its individual circumstances. Corporate manslaughter will ordinarily involve a level of significance significantly greater than a health and safety offence, hence the appropriate fine will seldom be less than £500,000 and may be measured in millions of pounds. The range of seriousness involved in health and safety offences is recognised to be greater. However, where the offence is shown to have caused death, the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.[35]Paragraphs 26 and 28 provide, respectively, that a plea of guilty should be recognised by the appropriate reduction, and that, in the great majority of cases, the court should conclude that compensation should be dealt with in a civil court, and should say that no order is made for that reason.[36]Paragraph 29 provides that the defendant ought ordinarily (subject to means) to be ordered to pay the properly incurred costs of the prosecution.[37]Paragraph 34 provides that, by the time of sentencing, a defendant ought to have remedied any specific failings involved in the offence, and if it has not will be deprived of significant mitigation.[38]Paragraph 37 provides that the normal approach to sentence should therefore be (in outline) to:
“(1) Consider the question at paragraph 6; (2) identify any particular aggravating or mitigating circumstances (paragraphs 7–11); (3) consider the nature, financial organisation and resources of the defendant (paragraphs 12-18); (4) consider the consequences of a fine (paragraphs 19-21); (5) consider compensation (but see paragraphs 27-28); (6) assess the fine in the light of the foregoing and all the circumstances of the case; (7) reduce as appropriate for any plea of guilty; (8) consider costs;……”

The rival arguments

[39]Given the judge’s conclusion that the carrying out of a proper risk assessment would have resulted in the erection of side barriers on the Bear and Clarence Bridge, Mr Morton, on the appellant’s behalf, accepted that the offences were shown to have been a significant cause of Mr Townley’s death, and that thus sentence fell to be determined in accordance with the Guideline, which, he accepted, overlapped significantly with the earlier well-known decisions of this court in F. Howe & Son (Engineers) Ltd [1999] 2 AER 249 and Balfour Beatty Rail Infrastructure Ltd [2007] 2 Cr. App. R. (S.) 64. Nevertheless he submitted that sentence fell to be determined by reference to the Guideline and not to the earlier authorities. He further submitted, inter alia, that:(1) The facts of the case provided no proper basis for the judge’s conclusion that the fine in this case had to be measured in hundreds of thousands of pounds.(2) The order for costs formed part of the sentence, and accordingly the sentence imposed was at the bottom end of the range identified as appropriate for corporate manslaughter, whereas the facts did not justify such a sentence, as the judge himself recognised.(3) The judge erred in his assessment of the seriousness of the offences and the weight to be attached to the aggravating and mitigating features, and should have concluded that the offences were at the lower end of the range.(4) By reference to the questions posed in paragraph 6 of the Definitive Guideline: a) The risk of serious injury was not very foreseeable given that: i) Millions of people, including children, had crossed the bridge over many years without mishap, and the evidence of the defence expert was that the possibility of any injury occurring was 1 in 4 million. ii) Local authority and health and safety inspectors, who had visited the Castle in the course of their work, and as visitors, on many occasions had never raised any concerns. iii) Temporary barriers were only required by the Entertainment Licence if there were more than 2,200 people in the courtyard. iv) The Head of Building Control at Warwick Council was aware of the temporary barriers (albeit that he had never inspected them) but had not expressed any concern about the absence of permanent barriers. v) Whilst, in his 2003 report, Mr Mitchell had identified the Bear and Clarence Bridge as a hazard and had noted that permanent barriers could be erected, he had described the risk of injury as remote and had given unchallenged evidence at trial that his report was not a recommendation to erect permanent barriers and that, in his view, barriers were not necessary for the safe use of the bridge. b) There was no directly applicable standard – albeit that it was accepted that the jury must have concluded that there was a failure properly to apply the guidance in the Approved Code of Practice issued under the Regulations. c) The breach was not common in the appellant’s organisation at all. Rather, it was the result of a “blind spot” in what was otherwise a good and effective system for managing safety at the Castle. d) The failure did not extend beyond site level within the organisation.(5) None of the aggravating features set out in paragraph 7 of the Definitive Guideline were present.(6) All of the mitigating factors set out in paragraph 8 were present.(7) Given the appellant’s good record and generally good approach to its health and safety and other responsibilities at the Castle, this was not the sort of case in which a substantial penalty was required in order to achieve a safe environment or to bring a necessary message home.(8) Whilst in Clifton Steel Limited [2007] EWCA Crim. 1537 this Court observed that it did not gain “any great advantage from a consideration of averages”, and whilst it was accepted that it is not the Court’s primary objective to achieve consistency, consideration of statistics provided by the Health and Safety Executive covering the years 2000 – 2005 showed that substantially less than 5% of the cases involved fines of £150,000 or more, and for the years 2007 – 2012 that only some 24 cases (5.6%) resulted in fines exceeding £250,000, of which three involved more than one fatality. 40 Relying principally on the decisions in F. Howe & Son (Engineers) Ltd (above) and Balfour Beatty Rail Infrastructure Ltd (above) Mr Berlin, on behalf of the respondent submitted, inter alia, that: (1) Failures to fulfil the general duties imposed under sections 2-6 of the 1974 Act are particularly serious as those sections are the foundations for protecting health and safety. (2) In assessing the gravity of a breach it is often helpful to look at how far short of the appropriate standard the offender fell in failing to meet the test of reasonable practicability, and also to consider the degree of risk and the extent of danger – including whether the failure was isolated or one that continued over a period. (3) The objective of prosecutions for health and safety offences in the workplace is to achieve a safe environment for workers and members of the public who may be affected. (4) A fine needs to be large enough to bring the message home not only to those who manage a defendant company but also to its shareholders. (5) No tariff applies, nor is it possible to say that fines should bear specific relationship to the turnover or net profit of the defendant – each case must be looked at on its own particular circumstances, with the fine reflecting the gravity of the offence and the means of the offender. (6) When a death has resulted the penalty should reflect public disquiet at the unnecessary loss of life, and a failure to heed warnings is also an aggravating factor. (7) In any event, the court is entitled to take a more severe view of breaches of health and safety at work where there is a “significant public element”. (8) In a case where a defendant is in a position to pay the whole of the prosecution costs in addition to a fine there is no reason in principle for the court not to make a costs order accordingly.(9) The Court must look at the whole sum (fine plus costs) that it is minded to order and consider the impact upon the offender.[41]Whilst recognising that the appellant was entitled to rely in mitigation upon its good safety record and the fact that it is a substantial and generally responsible company, Mr Berlin relied upon the aggravating features set out in the Friskies schedule (see paragraph 17 above).[42]By reference to paragraph 6 of the Definitive Guideline Mr Berlin submitted that:(1) Serious injury was entirely foreseeable. The law required the conduct of a risk assessment, and if one had been carried out it would have provided the requisite focus on the inherent risks and would have ensured safety.(2) The appellant’s conduct fell well below the reasonably practicable test given that: (a) It involved the absence of a risk assessment for a major entry and exit point which was (as one of the experts put it) “inconceivable”. (b) It included a systemic failure which had prevented the appellant’s Health and Safety Officer at the Castle seeing Mr Mitchell’s fabric risk assessment and thereby taking appropriate action or at least conducting a full risk assessment.(3) Whilst it was not alleged that the appellant commonly committed breaches, the breaches at the bridge continued for many years and exposed millions of visitors, including the vulnerable, to serious injury or death – thus, in that sense, there was a significant public element.(4) There was clear complacency involving the appellant’s Health and Safety Officer and his line manager.[43]Mr Berlin further submitted, by reference to paragraphs 13, 16 and 29 of the Guideline, that:(1) The appellant is a company with very substantial resources, hence no accounts were produced by it for consideration by the judge.(2) A fine is intended to produce “painful punishment” and must also be large enough to bring home the message to those who manage it and to its shareholders.(3) The defendant ought ordinarily, subject to means, to be ordered to pay the properly incurred costs of the prosecution, and the order made in this case was for less than the sum sought.[44]Finally, Mr Berlin submitted that the fine in this case was neither manifestly excessive nor wrong in principle. The general public was put at serious risk over many years by significant failings and a man lost his life as a result. The appellant, he re-iterated, is a substantial company and the penalty must reflect its culpability and be painful in its effect.[45]In response Mr Morton submitted, inter alia, that:(1) The respondent’s reliance upon aspects of its case and upon the aggravating features that it had advanced below was of limited relevance and had to be approached with caution unless supported by the factual basis upon which the judge passed sentence.(2) The respondent had endorsed the appellant’s submission that the court must take account of the whole sum (fine plus costs) that the appellant had been ordered to pay when assessing whether the penalty overall was punitive (or, in the present context, excessively so).(3) This was an isolated lapse in the sense relevant to sentence – albeit extended over a period of time. The judge expressly found the failings in relation to the bridge to be a “blind spot” in an otherwise good safety management system.(4) This case did not involve a “significant public element” in the sense intended in the authorities in relation to cases (like the railway) where public safety is entrusted to companies in the work that they do and where the general public simply has to trust in the competence and efficiency of such companies.

Discussion

[46]Section 125(1) of the Coroners and

Justice Act 2009 provides that the court:

“……..must follow…….any sentencing guidelines which are relevant to the offender’s case….unless satisfied that it would be contrary to the interests of justice to do so.”
[47]In this case sentencing took place after 15 February 2010; the appellant is an organisation; it is conceded that the offences were shown to have been a significant cause of death; and there was no question of it being contrary to the interests of justice to follow the Guideline. Accordingly, Mr Morton is clearly right that sentence in this case fell to be determined in accordance with the Guideline (together, we would add, with any authorities as to its interpretation and application, and any relevant statutory provisions) – albeit that the principles set out in the Guideline are clearly based on the principal authorities that preceded it, and thus, by way of example, in HIP (BODYCOTE) [2011] 1 Cr. App. R. (S.) 6 at paragraphs 26 and 30 the court observed, in a case to which the Guideline did not apply, that the outcome would have been the same (as to both the fine and the costs order imposed) if it had.[48]In any event, the Guideline necessarily falls to be applied in the context of the purposes of sentencing that are spelt out in s. 142(1) of the Criminal

Justice Act 2003, as follows:

“Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing – (a) the punishment of the offenders (b) the reduction of crime (including its reduction by deterrence) (c) the reform and rehabilitation of offenders (d) the protection of the public (e) the making of reparation by offenders to persons affected by their offences.” (a) the punishment of the offenders (b) the reduction of crime (including its reduction by deterrence) (c) the reform and rehabilitation of offenders (d) the protection of the public (e) the making of reparation by offenders to persons affected by their offences.”
[49]Deterrence is undoubtedly one of the purposes of sentence in relation to health and safety offences (whether resulting in death or otherwise) – see e.g. Jarvis Facilities Ltd [2005] 1 Cr. App. R. (S.) 44 and Palmer & Harvey McLane Ltd [2012] EWCA Crim 993.[50]As to the merits, it is convenient first to deal with Mr Morton’s argument that the order for costs formed part of the sentence, and that accordingly the sentence imposed was at the bottom of the range identified as appropriate for corporate manslaughter, whereas the facts did not justify such a sentence, as the judge himself recognised.[51]The argument seeks to aggregate the amount of the fines and the costs and to set them against the range of fines identified in the Guideline as appropriate for corporate manslaughter. A somewhat similar argument as to aggregation was firmly rejected by this court at paragraphs 28-30 of the judgment in HIP (BODYCOTE) (above) and the argument in this case is, in our view, misconceived, given that:(1) Paragraph 29 of the Guideline provides, as already noted above, that the defendant ought ordinarily (subject to means) to be ordered to pay the properly incurred costs of the prosecution.(2) In accordance with s.18(1) of the Prosecution of Offences Act 1985 the judge was entitled to make such order as to costs to be paid by the appellant to the respondent as he considered to be just and reasonable.(3) The appellant fought the case and chose not to place any financial information about itself before the judge, and hence he was entitled to infer that the appellant was able to pay any penalty or costs that he chose to impose and that it did not wish to put forward lack of resources as a limiting factor – see HIP (BODYCOTE) (above) and paragraph 17 of the Guideline.(4) The judge made the costs order in an amount which was less than that sought by the prosecution, and which was not grossly disproportionate to the fine.(5) Against that background the costs order was plainly, in its own right, both just and reasonable.(6) Even if the appellant’s means had been a limiting factor no issue of aggregation of the type argued for would have arisen. Rather the proper approach, in accordance with paragraph 37 of the Guideline, would have been first to identify the correct fine and the sum of any compensation order, and then to go on to consider costs by reference to paragraph 29. In the event of the appellant’s means then limiting what would otherwise be the appropriate costs order, the correct course would be to reduce the costs order not the fine – see the fourth principle identified by Lord Bingham CJ in Northallerton Magistrates’ Court ex p Dove [2000] 1 Cr. App. R. (S.) 136.[52]Accordingly, we reject Mr Morton’s aggregation argument.[53]The central issue in this appeal is whether the total fine fined imposed for both offences was manifestly excessive. That issue must be considered by reference to the approach set out in paragraph 37 of the Guideline and to the factual basis upon which sentence was passed and to the inferences to be drawn from that basis (rather than by reference to any re-iteration of the opposing cases beyond that).[54]By reference to paragraph 6 of the Guideline it seems to us that:(1) Given the minimal height of the parapet walls, the masking of the drop and the depth of the drop, foreseeable serious injury was obvious – not so much in relation to adults, but in relation to children.(2) The appellant fell seriously short of the applicable standard – it failed over a period of many years to carry out the necessary mandatory risk assessment of the Bear and Clarence Bridge which, over those years, was used by millions of people (and thus, to that extent, involved a public element); such risk assessments are the foundation stone requirement of ensuring compliance with the applicable standard; and if a risk assessment had been carried out then barriers would have been erected, the obvious risk of serious injury would have been eliminated and Mr Townley’s death would have been avoided.(3) This kind of breach was isolated, was limited to the Bear and Clarence Bridge, and constituted something of an uncharacteristic blind spot.(4) The breach went no higher than the on-site line manager of the Health & Safety Officer.[55]By reference to paragraph 7 of the Guideline, it seems to us that the judge inferentially found an additional aggravating feature, namely the failure to react appropriately to the advice of Mr Mitchell in 2003 (which raised, albeit in a report limited to the fabric of the Castle, the issue that the Bear and Clarence Bridge was a hazard and the question of whether side barriers were required) by the carrying out of a risk assessment which would, as he found, have led to the erection of side barriers.[56]As to paragraph 8 of the Guideline, it seems to us that:(1) Contrary to Mr Morton’s argument, there was quite plainly no prompt acceptance of responsibility by the appellant. On the contrary the appellant vigorously contested responsibility in a jury trial that lasted for some seven days, and still seeks to argue (for example) that the risk of serious injury was not very foreseeable, whereas the judge clearly concluded that it was obvious – albeit not so much in relation to adults but in relation to children. An undertaking to the Coroner and to the judge which, in reality in this case, amounted to no more than a promise not to continue to commit the same (obvious) offence cannot be equated to a prompt acceptance of responsibility.(2) Likewise, there was no level of co-operation with the investigation beyond that which will always be expected.(3) There were genuine efforts to remedy the defects – albeit that, by virtue of paragraph 34 of the Guideline (which mirrors the approach in e.g. Thames Water Utilities Ltd [2010] 2 Cr.App.R. (S.) 90 at paras 39(xiv) & 54 (iv)), there was plainly a duty to do so, and not to have done so would have amounted to the continuation of the failure to carry out a mandatory risk assessment, and to the continuation of an obvious danger.(4) The appellant had a good health and safety record.(5) The appellant undoubtedly had a generally responsible attitude to health and safety, as well as to its other duties.[57]As we have already made clear in paragraph 51(3) above, a significant consequence of the appellant’s choice not to provide any evidence as to its finances was that the judge was entitled to infer that it was able to pay any penalty that he chose to impose, and that it did not wish to put forward lack of funds as a limiting factor. Accordingly there was no need for the judge to consider, in particular, the factors set out in paragraph 19 of the Guideline as to e.g. the effect of the fines on the employment of the innocent. Equally, the appellant has chosen not to put any evidence as to its finances before us either - hence the judge’s inferences and approach still apply.[58]The judge, rightly, made no compensation order. He then had to assess the fine in the light of the matters set out in paragraphs 54-57 above, and of all the circumstances of the case. In doing so he was entitled to have in mind, as is conceded, that it is not the court’s primary objective to achieve consistency of level of fine, but rather (in accordance with paragraphs 16, 22 & 23 of the Guideline) that fines in cases of this type are intended to inflict painful punishment sufficient to have an impact on the defendant and tailored not only to what the organisation has done but also to its individual circumstances (including, very importantly in this case, inferred wealth). He had finally to bear in mind (via paragraph 25 of the Guideline) that, in a case of this type, the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.[59]Like the Court in Clifton Steel Limited (above) we do not gain any great advantage from a consideration of the averages upon which Mr Morton relies. The point, underlined in HIP (BODYCOTE) (above), is that there is no tariff in cases of this type.[60]The judge was clearly entitled, to conclude, as he did, that there had been a serious breach of the appellant’s health and safety systems in relation to the Bear and Clarence Bridge and that that had resulted in an obvious danger of at least serious injury (not so much in relation to adults, but in relation to children) to which a very large number of people had been exposed over many years, and which had been the product, in part, of a failure to react appropriately to advice in 2003. There was no question of any discount for a plea. Hence, notwithstanding the appellant’s generally good health and safety systems, its good record and the other mitigating features identified in paragraphs 54 & 56 above, but given the necessary inference as to its wealth, it seems to us that the judge was entitled to conclude that the total fine (although not required to be in the realms of that imposed for corporate manslaughter) had to be measured in hundreds of thousands of pounds, and that the total actually imposed of £350,015 was within the appropriate range (albeit towards the top end of it) for these particular offences committed by this particular appellant – especially when all the purposes of sentence are borne in mind.[61]As we have already indicated, the costs order was plainly just and reasonable.

Conclusion

[62]For the reasons set out above we reject Mr Morton’s arguments that the total fine, or the combination of the total fine and the costs order, was manifestly excessive. This appeal is dismissed.