University College London, R v [2018] EWCA Crim 835

No: 201703489/A3

[2018] EWCA Crim 835

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday 6 March 2018

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE HOLROYDE

MRS JUSTICE CARR DBE

THE RECORDER OF GREENWICH

HIS HONOUR JUDGE KINCH QC

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

UNIVERSITY COLLEGE LONDON

Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

J U D G M E N T

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LORD JUSTICE HOLROYDE:

[1]On 14th June 2017 in the Crown Court at Southwark, the University College London ("UCL") pleaded guilty to an offence of exposing another to a risk to health and safety, contrary to sections 3(1) and 33(1)(a) of the Health and Safety at Work Etc Act 1974. On 3rd July 2017 His Honour Judge Tomlinson sentenced UCL to pay a fine of £300,000 and to pay just under £15,000 by way of prosecution costs. UCL now appeals against that fine by leave of the single judge.

[2]The circumstances giving rise to the prosecution of UCL were as follows. UCL, a body established by Royal Charter and a registered charity, is the part owner of the London Centre of Nanotechnology ("LCN"), a department which employed approximately 130 staff. Within the centre was a group called the Diamond Electronics Group which consisted of post-doctorate staff and graduate, Ph D and Masters students. The complainant, Miss Marie-Laure Hicks, was a masters student studying nanotechnology. She was engaged in research which involved the use of a bespoke piece of equipment called the lithium evaporator or lithotron.

[3]The lithotron was designed in 2009 by the distinguished head of the Diamond Electronics Group. It comprised of a stainless steel chamber with two viewing ports and a sample holder within the larger chamber. The chamber would be heated up to 170 degrees Celsius to bake samples of diamond. The machinery sat on a metal frame on a metal bench. The bench had a hole which permitted access to the chamber and sample holder from underneath the bench. The chamber was connected to a vacuum pump and a compressed gas cylinder which supplied nitrogen to create a slight overpressure so as to avoid any contaminant getting into the chamber when a sample was introduced and the vacuum broken. The supply of nitrogen was controlled by a gate valve which had an on/off action and a speedy valve with a rotary action. There was a sensor on the lithotron which measured negative pressure. As we understand it, the supplying of nitrogen was a modification of the equipment which had been introduced only days before the accident occurred.

[4]On 30th June 2014, Miss Hicks was working on the lithotron. She introduced a sample into the cylinder and was in the process of tightening the bolts on the sample chamber when the viewing port shattered. Glass fragments exploded outwards causing injury to the left side of her face and to her eye. Miss Hicks was taken to hospital where she stayed for four days. She had stitches to the wounds to her face. She underwent surgery to remove fragments of glass from her left eye. The lens was removed from her left eye and oil was introduced to help the retina to heal. After six months further surgery was necessary to remove the oil and attempt to repair the hole in the retina. The hole could not be repaired. Sadly, therefore, Miss Hicks has lost partial vision in her left eye. She suffers from an area of grey vision, blurred vision and double vision. This serious injury causes her problems in her work - where, for example, she has difficulty in manipulating small items because she finds it difficult to perceive depth - and in the activities of her daily life. She has difficulty estimating speed, for example if she is crossing the road and a vehicle is approaching. If she is filling a glass or other vessel with liquid she cannot see where the top of the liquid is. She has been severely limited in pursuing her hobby of skiing because she cannot see bumps or rocks in the slope ahead. In addition, she suffered the symptoms of post traumatic stress disorder for some six months after the accident and continuing anxiety thereafter. On any view this was a serious injury to a young woman blamelessly going about her work.

[5]A health and safety executive investigation and an internal investigation concluded that it was likely that the chamber had over-pressurised because nitrogen was still being introduced into the chamber as it was being sealed. As a result, the pressure inside the chamber became too high and the viewing port failed because it was not strong enough to withstand the pressure.

[6]UCL pleaded guilty on a written basis which was not disputed by the prosecution. Three specific breaches of health and safety were admitted. First, a failure properly to calculate and keep under review the design of the lithotron following the modification to introduce the nitrogen supply in order to ensure that the machine was strong enough to withstand any potential overpressure. Secondly, there was a failure to carry out a risk assessment on the machine following the addition of the nitrogen line. A risk assessment should have identified either that the supply of nitrogen needed to be properly controlled, so that the device did not become a pressure chamber, or that the components of the machine should have been of sufficient strength to withstand the pressure. In this regard it is striking to note that the glass in the viewing port appears to have been between 10 and 20 years old. The third breach was the failure to ensure adequate control measures to meet the risk of over-pressurisation. Had a risk assessment been carried out, then control measures to meet the risks should have been identified and implemented. In fact no control measures had been introduced and there were no operating procedures written down for students to follow. As a result they were not informed of the risk that over-pressurisation of the chamber might lead to a shattering of glass in the viewing port. It was also unclear when the supply of nitrogen should be switched off prior to or during the sealing of the chamber and in the absence of a pressure gauge there was no way to gauge when sufficient nitrogen had been introduced.

[7]The learned judge heard detailed submissions as to the application of the Sentencing Council's Definitive Guideline on Sentencing for Health and Safety Offences. That guideline requires the court to consider culpability, which may fall into one of four levels, and harm, which requires a two-stage process taking into account both the likelihood of harm and the seriousness of the harm if it is suffered. The court then has to assess the turnover or equivalent of the defendant organisation. In this regard the guideline states:

"Normally, only information relating to the organisation before the court will be relevant, unless it is demonstrated to the court that the resources of a linked organisation are available and can properly be taken into account."

The court must then assess the appropriate penalty by reference to a table showing starting points and sentence ranges.

[8]The question of the appropriate credit for UCL’s guilty plea was considered at some length. The judge ultimately decided that the appropriate fine should be reduced by 25 per cent because of that plea. He observed in his sentencing remarks that the complainant had suffered life-changing injuries involving the almost total loss of visual acuity in her left eye and other disfiguring injuries to her face. He acknowledged a number of features in the appellant's favour. The appellant had never disputed civil liability and had been supportive of Miss Hicks and solicitous for her welfare in ways that went beyond simple monetary compensation. He recognised that UCL is a prestigious organisation and not one that anyone would expect to be involved as a defendant in criminal proceedings. He accepted that it was not a case in which anyone had engaged in cost-cutting or had in any way taken a calculated risk in regard to health and safety issues. Rather, it was evident that all those involved had simply overlooked the possibility of the events occurring as they did.

[9]In terms of the guideline, the judge concluded that the offence involved a medium level of culpability and level B harm. The number of persons exposed to the risk of injury was limited, but the offence had resulted in actual injury. The judge found no aggravating features. As to mitigation, he noted that there had been no previous incidents, the appellant had a good record and it had cooperated with the investigation in the way which would be expected of a responsible and caring organisation. He concluded that the resources to which he must have regard were those of UCL and not those of LCN. In summary, he found it to be a medium culpability, harm level 3 case involving a large organisation which because of its non-profit charitable status was entitled to be treated with less severity than a commercial operation. Had the appellant been a commercial organisation, the starting point would have been no less than £500,000 and very probably more. Making allowances for the appellant's charitable status, the judge reduced that starting point to £400,000 and then further reduced it by 25 per cent to reflect the guilty plea. Thus the judge arrived at the fine of £300,000.

[10]This court, like the court below, has been greatly assisted by the written and oral submissions of Mr Sturman QC for the appellant and Miss Heer for the respondent. We are grateful to them both.

[11]Mr Sturman accepts, as he did below, that the judge was entitled to have regard to the resources of UCL, but submits that the court should also take into account the limited resources of LCN. He also accepts, again as he did below, that the judge was entitled to find that this was an offence involving medium culpability and level 3 harm, but he submits that the fine was manifestly excessive in amount. In particular, he argues that the learned judge erred in fixing too high a starting point on the facts of the case: the relevant guideline starting point being £300,000, there was no warrant for the learned judge to have increased that figure to as high as £500,000 or more. Secondly, he submits that the learned judge was in error in failing to make a sufficient reduction because of the appellant's charitable status. Thirdly, he submits that the learned judge did not appear to have taken into account either at all or at any rate sufficiently the very much smaller turnover of the LCN as a subsidiary of UCL. In this regard Mr Sturman makes the point that although UCL in accordance with their policies have properly accepted responsibility for this offence, and will meet the financial penalty from the resources of the university as a whole, nonetheless this was an error on the part of one small subsidiary and not a university-wide or extensive failing. Fourthly, Mr Sturman submits that the learned judge made insufficient reduction for the various mitigating factors. He underlines those which we have already mentioned, but adds that in a number of ways UCL went well beyond what could reasonably be expected of them in quickly settling all civil liability, in taking a solicitous approach to the welfare of Miss Hicks and in handing over the report of their internal investigation to the Health and Safety Executive rather than seeking to claim privilege for it.

[12]Mr Sturman goes on to submit that UCL does indeed have a very large turnover measured in excess of £1 billion per annum but emphasises that this turnover stems from the receipt of grants from various sources. Any surplus which may be left at the end of a particular year is not treated as a profit to be distributed, but rather as a fund to be held in reserve in case of any future adverse developments in one or more of the sources of funding. Thus although the turnover is high, argues Mr Sturman, the position of UCL is very far removed from that of a commercial organisation with a similar turnover. He reiterates his submission below that in all the circumstances of this case, having regard to where the true fault lay, it was appropriate for the learned judge not only to consider the very large resources of UCL but also to consider the much more limited resources of LCN. He reminds us that the effect of UCL meeting the financial penalty in this case will be felt, at least to a limited extent, by all departments within the university and not just by that department which was at fault. He submits that the fine should properly have been in the range £150,000 to £200,000 and not the £300,000 imposed.

[13]Miss Heer for the respondent submits that the learned judge properly applied the guideline and the guidance in Thames Water Utilities Limited

[2015] EWCA Crim. 960

. She adds that the learned judge also in fact followed or acted in accordance with guidance which has much more recently been given in Whirlpool UK Appliances Limited

[2017] EWCA Crim. 2186

. She invites the court to conclude that the fine imposed was just and proportionate in the circumstances of the case.

[14]Having reflected upon the submissions of both counsel, we have reached the following conclusions as to the application of the sentencing guideline to the circumstances of this case.

[15]As to step 1 of the guideline, it is common ground that the case is one of medium culpability, in particular because it is appropriately to be regarded as falling between the descriptions in the high and low categories. As to harm, it is common ground that it is a category 3 offence because there was a medium likelihood of harm causing physical or mental impairment which has a substantial or long term effect on the sufferer's ability to carry out normal day-to-day activities or on their ability to return to work. As we have indicated, the assessment of harm under the guideline is a two-stage process. As to the second stage of that process, we agree with the learned judge that although comparatively few persons were exposed to the risk, harm was in fact caused and, we would add, was serious. That being so it is important to note that the guideline required the learned judge to consider "either moving up a harm category or substantially moving up within the category range at step 2."

[16]Step 2 requires the court to identify the relevant table of penalties. The selection of the relevant table depends upon the size of the defendant organisation. Appropriate financial information was properly provided to the court both in relation to UCL and in relation to LCN. To summarise that information, the former is a very large organisation for the purposes of the guideline, whilst the latter would fall at the bottom end of the category of medium sized organisation. It is important to note that the tables showing starting points and category ranges go up to the category of large organisation. In relation to a very large organisation, the guideline indicates that "... it may be necessary to move outside the suggested range to achieve a proportionate sentence." As was explained in Thames Water Limited, the court when dealing with a very large organisation should consider, having regard to the culpability and harm involved in the offence and to the financial realities of the organisation, whether the guideline for a large organisation sufficiently meets the case, bearing in mind that an important purpose of the fine is to have a real economic impact which will bring home the need to comply with health and safety legislation. A court in such a case may conclude that it is not "necessary" to move outside the category ranges appropriate to a large organisation.

[17]Although the learned judge did not state this in specific terms, we infer that he concluded that in the circumstances of the case UCL, although in fact a very large organisation, could properly be sentenced in accordance with the table of penalties appropriate to a large organisation. We draw that inference having regard to the terms in which the learned judge expressed himself first at page 32B and then at page 32G of his sentencing remarks. It may well be that the judge also took into account the reality of UCL's income at that stage. It seems to us that in the circumstances of this case the learned judge was entitled to treat the appellant as a large rather than a very large organisation. We observe, however, that that decision was, if anything, favourable to the appellant. It would have been open to him at step 2 to look simply at turnover and to treat the appellant as a very large organisation, with an appropriate adjustment to be made later in the sentencing process.

[18]The relevant table in the guideline, as identified by the learned judge, shows that the starting point for sentence after a trial is a fine of £300,000 and the range of penalty is from £130,000 to £750,000. Mr Sturman argues that consideration of LCN's turnover should have caused the judge to go towards the bottom end of that range. We are unable to accept that submission. The judge, as we have indicated, had already stepped back from placing the appellant into the category of "very large organisation" and on that ground going outside the table relevant to large organisations. Moreover, as we have already indicated, the judge was required at step 1 to consider moving up a harm category or substantially moving up within the category range because of the serious harm caused. We have no doubt that the learned judge was fully entitled to conclude that after trial a sentence substantially above the guideline starting point would have been appropriate.

[19]Having rightly found that there were no aggravating factors, the judge then had to consider the mitigating factors. We have summarised what the learned judge said in this regard and we have summarised Mr Sturman's submissions. We accept that the points made by Mr Sturman are matters of mitigation which do carry weight, but we are not able to accept that the learned judge failed either to take them into account or to give them sufficient weight. It must be remembered that within the appropriate range a fine of up to £750,000 could have been imposed after a trial. In our judgment, the seriousness of the harm caused to Miss Hicks merited a sentence high in that range before making reductions first to reflect the mitigation and then the guilty plea.

[20]Steps 3 and 4 under the guideline require the court in a number of ways to step back from the provisional fine reached by consideration of steps 1 and 2 and if necessary to adjust that provisional fine in order to ensure that it fulfils the objectives of sentencing. At this stage of the process, the court is required to have regard to the realities of the financial position of the offender. As the Lord Chief

Justice said at paragraph 40 of the judgment in Whirlpool:

"Step Three in the Guideline does not provide an invitation to the court to disregard what has gone before, but to adjust any conclusion to reflect the economic realities."

The decision in that case also makes it clear that the guideline does not require a strictly arithmetical approach and is sufficiently flexible to do justice in the circumstances of the individual case.

[21]It seems to us that the learned judge had already taken into account the financial realities of the position of UCL, and the fact that fault lay with LCN rather than with the university as a whole, in his decision to pass a sentence within the category range appropriate to a large organisation in a case of medium culpability and harm category 3. As we have indicated, had he not taken into account those factors he would have been entitled to move to a substantially higher starting point for sentence than he did.

[22]It remains to consider the reduction made by the learned judge in relation to the charitable status of the appellant. Mr Sturman submits that a reduction of 20 per cent was inadequate. It was perhaps not a generous reduction. However, this is not a case in which a fine which would otherwise be appropriate should be reduced because of its likely impact on the provision of charitable services to the needy, and we agree with Miss Heer that the judge must already have taken into account, at an earlier stage of the sentencing process, the fact that almost all UCL's income is spent on funding educational activities. Moreover, whilst the appellant of course has charitable status, the activities of LCN not only add to the academic prestige of the parent organisation, but also have at least some commercial aspect. In those circumstances, it seems to us that the reduction made by the learned judge to reflect the charitable status was within the range properly open to him.

[23]We have already referred to the detailed argument below as to the credit to be given for the guilty plea. We have no doubt that the reduction of 25 per cent on this ground was again well within the range properly open to the judge. We need say no more about the remaining steps in the process set out in the guideline.

[24]It follows that in our judgment the learned judge applied the sentencing guideline in a way which does not give rise to any successful ground of appeal. There is much to be said on the appellant's behalf and it is apparent from the transcript that Mr Sturman made all relevant points with considerable skill before the sentencing judge. But for the reasons which we have given, we conclude that the fine imposed was not one which was manifestly excessive. Indeed, we would wish to emphasise that in our judgment a fine at the level for which Mr Sturman has contended would have fallen well short of being adequate to meet the seriousness of this case. This appeal accordingly fails and is dismissed.

[25]MISS HEER: My Lord, the prosecution were directed to attend this hearing by the single judge. In those circumstances may I apply, pursuant to section 18 of the Prosecution of Offences Act for the prosecution costs? I have a figure which my learned friend is aware of and I understand makes no submissions in respect of. It is £2,524.84.

LORD JUSTICE HOLROYDE: Mr Sturman?

[27]MR STURMAN: They follow the event. The closest I seem to have got was a concession but it was not a very generous concession. That does not amount to a win. So the only point I make is this comes out of the general funds for the university, but it is for my Lords' discretion.

LORD JUSTICE HOLROYDE:

[28]Thank you both. We order the appellant to pay the costs of the respondent in the sum of £2,500. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400