Jarvis Facilities Ltd, R v

In sentencing a company for health and safety offending, a fine must reflect the gravity of the breach and provide effective deterrence. It must also take account of the company’s economic strength. Consistency with fines in other cases is relevant but is not the primary objective.

A court may treat breaches with a significant public element more seriously, especially where the public must depend on the competence and efficiency of those responsible for safety. It may also take account of the fact that a failure which produced limited risk on the particular facts could have occurred elsewhere with graver consequences. The actual risk created in the case must nevertheless be assessed accurately.

The appellant company pleaded guilty in the Crown Court at Sheffield to an offence under sections 3(1) and 33 of the Health and Safety at Work Act 1974. It was fined £400,000, with costs of £28,061.

The offence arose after a freight train derailed at a railway junction. A section of rail had been removed during repair work, but the junction had not been physically secured and the signalling record had not been completed. A later removal of a protective sleeve permitted the route to be set towards the missing track.

The company appealed against sentence. The central issue was whether the fine properly reflected the actual risk, the gravity of the failures, the public-safety context and the appropriate deterrent effect.

1. Appeal allowed to a limited extent. The fine of £400,000 was excessive. The court substituted a fine of £275,000. The costs order was undisturbed.

2. The sentencing judge had correctly considered the guidance in R v F Howe & Sons (Engineers) Ltd [1999] 2 Crim App Rep (S) 37. A corporate fine must be sufficient to bring home the importance of health and safety to those who manage and own the company. The gravity of the breach is informed by how far the company fell below the reasonably practicable standard, together with aggravating and mitigating features.

3. Consistency of fine is relevant, but cannot be the primary aim where companies have very different financial resources. The court was entitled to treat the earlier proceedings against the appellant’s sister company as a warning relevant to deterrence, although they were not a previous conviction of the appellant.

4. Breaches involving a significant public element may properly attract a more severe view. This is particularly so in railway work, where public safety is entrusted to the competence and efficiency of private companies. It was also relevant that comparable failures could have occurred elsewhere and generated greater danger.

5. However, the judge had somewhat overestimated the actual risk at this junction. There was no real prospect of a two-train collision, the route was subject to a 25 mph limit, and the incident was partly caused by independent failures in the signalling system. The offending was materially less serious than the earlier York case, and neither death nor serious injury had occurred. Even allowing for deterrence and public outrage, £275,000 was the appropriate maximum fine.

• Court of Appeal (Criminal Division): allowed the appeal against sentence to the extent of substituting a fine of £275,000 for £400,000.

• Crown Court at Sheffield: His Honour Judge Moore sentenced the company on 5 July 2004, following its guilty plea, to a fine of £400,000 and costs of £28,061.