Thelwall, R. v [2016] EWCA Crim 1755

[2016] EWCA Crim 1755

Case No 2016/04378/A2

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday 25 th October 2016

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 Thomas of Cwmgiedd)

LORD JUSTICE TREACY

and

MR JUSTICE LEGGATT

__________________

- v -

Between

KENNETH THELWALL

__________________

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Mr P Smith appeared for Applicant

Mr P Bates appeared for Health and Safety Executive

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J U D G M E N T (As Approved by the Court)

THE LORD CHIEF JUSTICE:

[1]On 26th August 2016 in the Crown Court at Manchester before His Honour Judge Leeming QC the applicant was sentenced to twelve months' imprisonment. He had previously pleaded guilty to an offence under section 37 of the Health and Safety at Work Act 1974.

[2]The applicant's application for leave to appeal against sentence has been referred to the full court by the Registrar. We grant leave.

[3]The offence to which the appellant pleaded guilty was that as a director of Thorn Warehousing Limited he had connived at the breach by the company of its duties under section 2(1) of the 1974 Act, or the breach was attributable to his neglect. The company pleaded guilty. It was fined a sum of £166,000.

The facts

[4]The facts of this case are relatively simple. Thorn Warehousing Limited was a company that hired out mobile access equipment. It had a small number of employees. The appellant was the sole director.

[5]A fatal accident occurred on 29th January 2014. An employee, Paul Williamson ("the deceased") was tasked with loading a mobile elevating work platform to bring it back to the company's depot. He was loading it onto a flatbed truck when it toppled over and landed on him, causing fatal injuries.

[6]The background to the accident was, in summary, the following. In November 2012 the company had purchased a Spider elevating work platform. Initially it was moved with the use of a pick-up truck and trailer fitted with hinged ramps. The appellant decided that he wished to use the pick-up to move other machinery. He therefore bought another trailer. For that trailer, which had a flatbed height of 450 millimetres, he bought from The Ramp People ramps which he used. Another flatbed truck was then purchased. It was clear that three matters had to be looked at: first, the ramps had to be of a sufficient gradient; secondly, the ramps required anchoring; and thirdly, there had to be proper training.

[7]The new truck was brought into operation eight days before the fatal accident. It was claimed by the company and the appellant that the appellant and the deceased had practised loading it, but there was no record of that. Secondly, the appellant said that he had asked the deceased to bore some holes so that the ramps could be secured. However, that was not done and he had not checked that it had been done. Although the deceased had had training a year previously, he had had no training in relation to the loading of this elevating platform.

[8]It was contended at the hearing before the judge that a risk assessment document had been created ex post facto, but that matter, as we understand it, was not pursued.

[9]We are grateful for the provision to us of photographs of the truck and of the equipment from which the circumstances in which the accident occurred are clear.

[10]The one striking feature of the case to which the judge paid considerable heed was that, unusually, the appellant had a previous conviction in the Crown Court at Chester for breach of health and safety obligations in relation to which a person had been killed. On that occasion the appellant was fined £125,000. There was no risk assessment on that occasion. The risk that serious accidents could occur if proper procedures were not followed should therefore have been apparent to the appellant. We accept the point that has been made before us by counsel on behalf of the appellant that the person killed in that earlier accident was not an employee of the appellant at the time. But the gravamen of the previous incident is that it shows the importance that must be attached to Health and Safety at Work Regulations. It significantly undermines the argument that the appellant did not appreciate the serious consequences that could occur if proper health and safety procedures were not followed.

The hearing before the judge

[11]The mitigation that was advanced before the judge was that the guilty plea had been tendered at the earliest opportunity; that the appellant had employed someone to advise him on health and safety in 2012 and 2013 on other aspects (but not this); and that he had co-operated with the inquiry. It was also said that if he received a custodial sentence, there was a risk of the failure of an associated business with which the appellant had become involved.

[12]At the hearing before the judge, the Health and Safety Executive, as prosecutors in the name of Her Majesty, said that they considered that the appellant's culpability was between high and very high, and that the level of harm was a category 1, level A, namely, that there was a high likelihood of death resulting. On the basis of the matters advanced by the Health and Safety Executive, the starting point would have been between 12 and 18 months' custody, and the range would have varied across the guideline of between 26 weeks and two years.

[13]The appellant, although he accepted that the harm was high, said that there was a medium likelihood of an accident and that the judge should have approached the matter on the basis of either a fine or 26 weeks' custody. It was strongly urged that if the offence crossed the custody threshold, the sentence should be suspended.

[14]The judge concluded, in his shortly expressed sentencing remarks, that the deceased had needlessly been put at risk. He made a finding, which is of importance, that the appellant's attitude to health and safety was "cavalier"; that he should have trained the deceased; that he should have carried out a risk assessment; and that the previous conviction to which we have referred was one which seriously aggravated the culpability of the appellant. The judge imposed a sentence of twelve months' imprisonment. That meant, as he gave full credit of one third, that he must have had in mind an initial sentence of 18 months. He must, therefore, have sentenced on the basis that the harm was at level 1 and that culpability was on the cusp of high or very high. In essence, as has been correctly submitted, the judge must substantially have adopted the approach that had been urged upon him by the Health and Safety Executive.

The submissions on the appeal and our conclusions

[15]In the submissions advanced on the appellant's behalf today, Mr Smith has concentrated on four key issues. First, in relation to culpability, he submits that in the context of this company culpability was medium. He says that, essentially, this was a case of poor judgment, no more. However, in our judgment there was sufficient evidence before the judge on which he was entitled to find that the level of culpability was high or on the cusp of high and very high, based on is finding that the attitude of the appellant was "cavalier".

[16]Secondly, as regards the risk of harm, it is said the judge had assessed the risk at too high a level. In our judgment there was ample evidence upon which the judge could have concluded as he did. The dangers of loading onto a flatbed truck equipment of the kind visible in the photographs, without proper training and supervision, are well-known. It is well-known that if machinery topples, severe injury may be caused.

[17]Thirdly, as to the likelihood of harm and its causation of death, very much the same arguments apply.

[18]Finally, there is the question of the appellant's previous conviction. We accept that the previous conviction, which is itself extremely unusual in such a case, occurred in different circumstances. Nonetheless, it was highly material to the judge's view of the case, bearing in mind that it ought to have been brought home to the appellant the seriousness of attending to health and safety matters and the putting in place of proper training and proper supervision.

[19]Although the arguments have been eloquently addressed to us and we have given leave to appeal, we can see no proper criticism of the basis upon which the judge approached this case, or any proper basis for the contention that the sentence passed was manifestly excessive.

[20]Accordingly, this appeal is dismissed.

The citation of similar cases

[21]The court would like to add three observations in relation to this kind of case. As the court has made clear in other cases where the offence is the subject of a Sentencing Council Guideline, and also in relation to Schedule 21, guidelines are guidelines. The citation of decisions of the Court of Appeal Criminal Division in the application and interpretation of guidelines is generally of no assistance. There may be cases where the court is asked to say something about a guideline where, in wholly exceptional circumstances – and we wish to emphasise that these are rare – the guideline may be unclear. In such circumstances the court will make observations which may be cited to the court in the future. However, in those circumstances it is highly likely that the Council will revise the guideline and the authority will cease to be of any application.

[22]It is important that practitioners appreciate that our system now proceeds on the basis of guidelines, not case law. It will, therefore, be very rare, where there is an applicable guideline, for any party to cite to this court cases that seek to express how the guideline works, other than in the rare circumstances we have set out. Decisions of this court are of particular importance to the individuals concerned, but they are unlikely to be of any assistance to further appeals where the guidelines are in issue.

[23]Secondly, where a case comes before a sentencing judge, it is important that matters follow the same course. As we observed in the course of argument,

the judge said:

"… before dealing with sentence, I have been referred in the defence bundle and in submissions this morning to a number of online articles where suspended sentences of imprisonment have been imposed on individual defendants for breaches of health and safety legislation. These emanate from the HSE themselves, the CPS website, the BBC news webpage and the Express and Star newspaper webpage. They are all online articles or summaries and not reports of cases. None purports to be full transcripts of court proceedings and the sentencing remarks of judges who imposed those sentences and may therefore be quite inaccurate. All are first instance decisions. To my mind when sentencing in a case like this, it is important to remember, as I have said, that every case is fact specific."

It is right to point out that these matters were not put before the judge by the Health and Safety Executive. We wish to make clear that it is impermissible to adduce reports of that kind before a judge. The judge has the guideline. His duty is to apply the guideline and to make it clear that that is what he is doing. It will, we hope, make it much easier for judges and shorten the time that such cases take if the practice to which we have referred ceases forthwith. Health and Safety cases are ordinary criminal cases

[24]It is, we regret to say, sometimes forgotten on all sides, particularly by those who defend in these kinds of case, that they are no different to other criminal cases. They must be approached on the basis that they are no different. It is said on occasion that they require much more detail, and much more careful explanation. Of course there may be cases where the technical evidence is difficult, but the general approach to the conduct of these cases should be the same before a trial judge as any other criminal case. That seems to have been forgotten. It is a matter of deep regret that this court has to remind practitioners of that fact.

[25]The same is true on occasion in this court. For example, in this case we were provided by the respondent Health and Safety Executive with a 19 page skeleton argument. The Court of Appeal Civil Division, by provision in the Civil Practice Direction 52C at paragraph 31, makes it clear that even in full-scale civil appeals the maximum length of a skeleton argument should not exceed 25 pages. In our experience, the provision of a 19 page skeleton by the respondent in a sentence appeal is an example of those who appear in this court thinking that there is something special about these cases. There is not.

[26]Furthermore, there is another way in which the modern form of guidelines is being forgotten. There is extensive reference in the documents before us to Friskies Schedules. R v Friskies Pet Care UK Ltd [2000] 2 Crim App Rep (S) 401 is no longer of any materiality. The matter has been superseded by the Criminal Practice Direction 7Q3-7.

Costs

[27]Finally, we wish to make an observation on costs. It is a welcome feature of these cases that the courts often make substantial orders against defendants for the recovery of investigative costs and the costs that might have had to be incurred to ensure equality of arms before a trial judge. However, the Health and Safety Executive must bear in mind that in this court in particular the position of a respondent is generally no different to that of the Crown Prosecution Service when an appeal is brought by an offender. We were asked in this case to make an order for costs that included: first, the attendance of a solicitor (which is generally unnecessary for any sentence appeal); and secondly, for an award to counsel that was vastly in excess of what would be paid to counsel instructed by the CPS.

[28]There may be rare occasions upon which such amounts are sought to be recovered from appellants, but those cases will be rare. In this particular case it is unnecessary for us to set out the details of the figures concerned, save to say that they are a multiple of many times what the CPS would have paid counsel. That is because in this case it is clear from the papers that have been put before us by the office of the Court of Appeal Criminal Division that the appellant has no money.

[29]We regret that we have had to make those lengthy observations, but we hope that for the future this will result in a more economic and speedy disposal both of first instance cases and of appeals in this court. They should not generally take any longer than ordinary criminal appeals of the type this court is well used to hearing. ____________________________________