B&Q Plc, R v

An appellate court will not quash a conviction for inconsistent verdicts unless the verdicts are logically inconsistent. If that threshold is met, the court must consider whether a legitimate train of reasoning can sensibly explain the apparent inconsistency and whether the conviction is safe.

Under Health and Safety at Work Act 1974, reasonable practicability requires an assessment of the risk to the particular class exposed. A jury could consistently conclude that greater precautions were reasonably required to protect members of the public, including children, than trained and informed employees.

Corporate fines must reflect total criminality and provide a real financial deterrent. A costs order must be just and reasonable and should properly allow for abortive trials caused by prosecution failings and for acquittals.

B&Q plc was tried at Bournemouth Crown Court following a fatal forklift-truck accident in one of its stores and several earlier incidents. It faced counts under sections 2(1) and 3(1) of the Health and Safety at Work Act 1974.

The jury acquitted B&Q of the section 2(1) counts concerning employees, but convicted it of the section 3(1) counts concerning persons not employed by it. The company was fined a total of £550,000 and ordered to contribute £250,000 to the prosecution's costs.

On appeal, B&Q challenged the alleged inconsistency of the verdicts, the adequacy of the jury directions, the fines, and the costs order. The central issue on conviction was whether acquittal concerning an employee and conviction concerning a member of the public arising from the same accident could rationally stand together.

1. The appeal was allowed only in relation to costs. The challenges to conviction and sentence failed. The prosecution-costs order was varied from £250,000 to £177,792.28.

2. The verdicts on the section 2(1) and section 3(1) counts were not logically inconsistent. The jury had been correctly directed to decide every count separately and to assess duty, breach and reasonable practicability on the evidence relevant to that count. The risk to employees could rationally be treated differently from the risk to members of the public. Employees had training, familiarity with forklift operations and safety information. Members of the public, including children, might not have those protections. A jury could therefore find that further precautions, including a banksman, were reasonably practicable for the public although B&Q had done all that was reasonably practicable for employees.

3. The court applied the established approach to inconsistent verdicts. Logical inconsistency is the necessary first threshold. Only if it is established does the court consider whether no legitimate reasoning can explain it or whether the conviction is unsafe. Since the verdicts were logically consistent, the second question did not arise.

4. The renewed application concerning cross-admissibility was refused. The directions repeatedly required separate consideration of each count. They were sufficient in the circumstances, and the differing verdicts demonstrated that the jury had considered the counts separately.

5. The fines were neither wrong in principle nor manifestly excessive. The sentencing judge had assessed the company’s total criminality, including failures of local and senior management and audit failures. A corporate fine must be sufficiently significant to reflect culpability, the death caused and the need to deter managers, shareholders and other employers. For a company of B&Q’s scale, the total fine was modest. The court added, obiter, that a substantial company should normally pay such a fine immediately or within a single-figure number of days unless cogent evidence justifies more time.

6. On costs, the Crown Court judge erred in principle by using a global approach instead of considering the distinct statutory routes for prosecution and defence costs. Given the absence of an appeal against the refusal of a defence-costs order, the Court of Appeal retained a global adjustment. It disallowed £39,000 of prosecution costs for the aborted trials, credited £60,000 for B&Q’s abortive-trial costs, and made a further £20,000 allowance for acquitted counts.

• Court of Appeal (Criminal Division): In [2005] EWCA Crim 2297, dismissed the challenges to conviction and sentence, refused renewed leave on cross-admissibility, and reduced the prosecution-costs order to £177,792.28.
• Bournemouth Crown Court: The jury convicted B&Q of the section 3(1) counts under the Health and Safety at Work Act 1974 and acquitted it of the section 2(1) counts. The company was fined £550,000 in total and ordered to pay £250,000 towards prosecution costs.