Court of Appeal hears first two appeals under new sentencing guideline

On 25th October, Pascal Bates appeared for the respondent (HSE) in the first two appeals heard against sentences for health and safety offending passed under the new Sentencing Council guideline.

Kenneth Thelwall, a company director, had been sentenced to 12 months’ imprisonment after an employee of his company was crushed and killed by a 2.4 tonne mobile elevated work platform, which fell on to him from ramps when that employee was trying to load it onto a lorry. Mr. Thelwall had been fined heavily in 2012 for previous safety offending leading to a previous fatality. Mr. Thelwall’s company had not provided appropriate equipment or instituted a safe system of work as to risk assessment, procedures or training. Issues raised by the appeal centred on the assessments of culpability and harm for sentencing guideline purposes.

Watling Tyre Service Limited, a company with a turnover of more than £20 million, had been sentenced to a £1 million fine after an employee sustained fatal injuries upon being thrown by an exploding large vehicle tyre, which he had been trying to mend for the company’s customer. Again there were deficiencies as to the provision of appropriate equipment, procedures and training. The principal issue raised by the appeal was as to the effect of a ten year delay in bringing the case to court, in particular whether that should affect the applicability of the new guideline or, if it were to be applied, call for a larger reduction than the sentencing judge had already factored in.

The Court of Appeal proceeded in accordance with the new guideline and upheld both sentences. The Lord Chief Justice took the opportunity to remind practitioners that, now that there was the new guideline, the citation in the Court of Appeal or to sentencing courts of case law was ‘impermissible’, and that the approach to sentencing in health and safety cases should be no different than in other criminal cases.