The Definitive Guideline and the public sector adjustment of fines

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R (HSE) v Central Bedfordshire Council [2020]

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The Definitive Guideline for Sentencing in respect of Health and Safety Offences (“DG”) appears to contain an explicit ‘entitlement’ for public sector organisations in regard to a reduction in fines; it states:

“Where the fine will fall on public or charitable bodies, the fine should normally be substantially reduced if the offending organisation is able to demonstrate the proposed fine would have a significant impact on the provision of its services.”

There has been considerable debate as to what this indication in the DG actually means in the context of public sector organisations and, moreover, what evidence is expected to be deployed by such organisations at sentencing in order to maximise their opportunity to secure a just and proportionate sentence, such that their future provision of services to other local service users is not jeopardised.

Previous sentencing decisions in cases like R (HSE) v Havering Borough Council [2017] EWCA Crim 242 have served to cause considerable anxiety as to the impact of the DG in public sector circumstances, particularly given the wider demands on public sector resources and, therefore, the immediate impact upon local authority service users by a significant regulatory fine. There have been a number of cases, following in the wake of Havering, where very significant regulatory fines have been imposed on public sector organisations, consistent with the terms of the DG.

Recently, Dolmans had cause to represent a public sector client in a sentencing environment where these issues were front and centre in the sentencing debate.

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On 4 February 2020, Central Bedfordshire Council (represented by Dolmans’ Peter Bennett) was sentenced in Luton Magistrates’ Court for breaches of the Work at Height Regulations, leading to serious injuries sustained by a school caretaker who, in December 2017, fell more than 2 metres from a school roof/stepladder whilst trying to retrieve a training shoe belonging to a school pupil. The caretaker had been sent to retrieve the said training shoe, which had been thrown onto the roof at the school by another pupil, just before time for the pupils to be collected from school and taken home for the end of term. He had gained access to the single storey roof using a long stepladder, which was the normal apparatus for such an activity at the school. However, by common consent, this was not a suitable piece of equipment and, moreover, whilst the caretaker had received ladder and working platform training in the past, this was some considerable time ago and his PASMA training certificate had expired by the time in question. Moreover, there was no specific risk assessment for the work in question and the generic work at height risk assessment was wholly inadequate for the risks involved.

The caretaker was distracted by a member of staff during the course of his efforts to retrieve the training shoe and fell from the height of the single storey roof to the ground below, striking a metal barrier erected adjacent to a nearby entry door (to protect the edge of a wheelchair ramp) on his way down. Serious multiple injuries were caused, including 8 broken ribs, a punctured lung and a torn liver. The injured person spent a significant period of time, over Christmas 2017, in hospital and, in particular, in the high dependency unit. He subsequently retired from his employment with the council and his civil claim for damages is outstanding.

At the point of our instruction in July 2018, the council had already dealt with 2 Improvement Notices served by the Health and Safety Executive. These Improvement Notices related to the alleged lack of planning and safe system of work in relation to the activity of retrieving pupils’ shoes from the school roof. We were initially consulted in relation to a proposed PACE interview to deal with work at height within schools generally.

A prosecution was eventually instigated against the council arising out of the December 2017 incident in August/September 2019, leading to the aforementioned sentencing hearing before District Judge Leigh-Smith in Luton Magistrates’ Court. Central Bedfordshire Council had, on advice, indicated a desire to plead guilty at a preliminary hearing in October 2019. Sentencing was then deferred to February 2020, in part, to give the council an opportunity to consider its position financially, as February was the usual point in the financial year when budgets were considered and fixed for the succeeding financial year.

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Detailed mitigation evidence was compiled on behalf of the council, in regard to which there was full and excellent engagement by senior members of the council’s management team. This evidence included a very detailed Witness Statement from the Director of Resources regarding the impact a fine would have on the council’s delivery of services to the public, consistent with the proviso as to the same contained in the Definitive Guideline (see above).

In addition, this Witness Statement dealt with the savings which the council had been required to make over the course of the last 8 to 10 years and other unique challenges faced by the council as to the delivery of adult social care in the context of the locality; where the ageing population was growing well above the national average and there were further challenges to the council in terms of the generation of income generally.

Additionally, a detailed Witness Statement and circa 130 pages of exhibits was provided in regard to the council’s approach to health and safety in schools generally in order to demonstrate that this incident was an aberration within an overall robust and well thought out system for the provision of advice and support to schools, albeit recognising that the council (like many health and safety functions) was an enabling function, not a day-to-day oversight and management function.

The prosecution, by reference to the DG and the size of the council’s annual revenue budget (placing it firmly in the “large organisation” category) contended for a starting point in respect of a fine of £600,000, with an overall fine range of £300,000 to £1.5 million.

This was based on an analysis of medium culpability, medium risk of harm and/or category A harm (risk of death) (ie – a category 2 case). The prosecution also indicated that the Sentencing Judge should consider whether to move up within the sentencing range to allow for the fact that the breach had also been a significant cause of harm. All of this analysis was perfectly appropriate and expected given the impact of the annual revenue budget of the council (on evidence, circa £196 million net) and the requirements of the DG.

The District Judge, inevitably, heard from both parties at the sentencing hearing. Counsel for the council had provided a detailed Summary of Mitigation document in support of lengthy submissions as to sentence and mitigation on the day.

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The District Judge found that the incident did involve medium culpability and a medium risk of harm, but level B harm, rather than the level A harm contended for by the prosecution. This resulted in an immediate adjustment to the sentencing parameters provided by the DG. On this basis, the case became a category 3 case, giving rise to a starting point for a fine of £300,000 and an overall fine range of £130,000 to £750,000.

Based on the significant mitigation evidence provided by the defence, the District Judge accepted that it was proper for him to move to the lowest end of this range, and then move significantly below that point. He actually established a starting point for a fine at £50,000 (due to the impact that a mathematically calculated fine would have on the provision of council services in light of the evidence provided by the Director of Resources). Applying further mitigating factors, he arrived at a figure (subject to reduction for early guilty plea) of circa £14,000. Applying the conventional one third deduction for early guilty plea, this produced a net fine of £9,380.00.

Analysis and Comment

A number of factors are worthy of particular consideration in this case:

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• The fine range suggested by the prosecution – £300,000 to £1.5 million – with a start point of £600,000 – is perfectly reasonable and, indeed, is required by the Definitive Guideline in the context of a “large organisation”, which Central Bedfordshire Council most certainly is. In that sense, this fine range was the correct fine range and nothing which the prosecution suggested in that regard was untoward at all. The fine range above is the “expected” fine range.

• Inevitably, the figures above are informed by the prosecution analysis of the offending. Any element of that analysis which is not accepted by the Sentencing Judge, conceivably, has an impact on ultimate sentencing parameters and, therefore, sentence. Thus, the above figures were based on medium culpability, medium risk of harm and/or level A harm (ie – a category 2 situation). However, the Judge found medium culpability, medium risk of harm and/or level B harm, which takes this down to a category 3 situation.

• By being category 3 rather than category 2, this immediately reduces the fine range to £130,000 to £750,000 – with a start point of £300,000 (for a large organisation). This has an immediate impact on fines before the other parts of the DG are engaged with regard to mitigation. Put simply, a careful and proper analysis of the factual circumstances, supported by appropriate submissions from counsel at sentencing, immediately engaged savings in terms of the fine without having to rely entirely on mitigation. Mitigation evidence would then be applied to greater effect, as it were, to the lower parameters thereby achieved.

• The powerful mitigation provided by the defence (as above) comprised 2 themes:

  • The materials that the council’s health and safety team provided, which enabled us to make a concerted attack on the proposition that this school had no idea what it was doing with regard to health and safety, and, moreover, emphasise the council’s good and structured approach to health and safety generally (within an overall definition of an enabling facility, not a day-to-day management facility).

  • ​The excellent and powerful Witness Statement from the council’s Director of Resources, which provided clear indications, with appropriate figures and examples, of the impact that a large regulatory fine would have on the provision of services by Central Bedfordshire Council. This Witness Statement, and the active engagement of the Director of Resources in its preparation, was absolutely critical. Deliberately, a significant amount of time was spent on getting this evidence absolutely right before sentencing. This included deferring sentencing to a point when the next annual revenue spend (for 2020-2021) was clearer.

• As a result of that mitigation, and the detailed explanations provided by Bernard Thorogood of counsel (defence counsel) as to the Guideline being a guideline “not a tramline”, as the Court of Appeal have put it in previous cases, meant that the District Judge felt confident in stepping outside the one dimensional parameters of the DG in isolation (advocated by the prosecution) in order to achieve a just and proportionate sentence having regard to the factors and constraints applicable to the council in the ‘real world’.

• This was (is) a reasonable and proportionate fine imposed by a Judge fully engaged with the evidence provided. However, the nature of the injuries sustained argued strongly (see below) for a movement up within the fine range, so a ‘raw fine’ (ie – before early plea discount) in excess of £1m could have been applied here without any real deviation from the DG.

• This was not a ‘lucky escape’, it was the result of concerted efforts by all concerned, including the legal team; albeit the legal team are only as good as the material provided to them, and we were provided with exemplary material in this instance.

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Clearly, like any sentence, there is always a significant degree of latitude available to a particular Sentencing Judge who must form their own view of the material put before them and the facts of the case in question; however, perhaps the biggest issue, as the legal representative, to get across to duty holders is that proper, experienced representation enhances the chances of a good outcome, as is illustrated by the outcome achieved in this matter. This outcome is clearly at the upper end of what can be achieved (because of the strength of the mitigation evidence deployed), but an expert and structured response to regulatory intervention of this nature is critical to management of the impact of the eventual fine in what continues to be financially difficult times for the public sector at large.