AGC Automotive (UK) Ltd, R. v

A fine for a health and safety offence must be proportionate to the offender’s culpability, assessed with the relevant aggravating and mitigating circumstances. There is no tariff for such offences, because their circumstances vary widely. However, sentencing levels should not be arbitrary. Recent comparable cases may give a broad indication of the appropriate range, subject to the offender’s means.

Recklessness denotes a particularly high degree of culpability. A one-off failure to incorporate proper pedestrian segregation into temporary workplace arrangements, although serious and aggravated by recent warning of the risk, was careless rather than reckless.

The appellant company assembled and supplied automotive glass products. A visiting information technology contractor was seriously injured when he was struck by a reversing fork-lift truck at the company’s Northampton premises.

The company pleaded guilty to one count of breaching section 3(1) of the Health and Safety at Work Act 1974. The breach arose from temporarily storing stillages in an area used by pedestrians without providing a diverted and segregated pedestrian walkway.

At Northampton Crown Court, the judge fined the company £150,000 and ordered it to pay £9,460 costs. The company appealed against both amounts. The central issues were whether the judge had overstated culpability by describing the conduct as reckless, and whether the fine and costs order were excessive.

1. Appeal allowed in part. The fine was reduced from £150,000 to £60,000. The appeal against the costs order was dismissed.

2. The offence concerned an unsafe system of work which exposed a visitor to the risk created by fork-lift trucks. The visitor’s failure to report to reception and to keep to a walkway could have limited mitigating significance. It did not alter the essential character of the company’s breach.

3. The sentencing judge was entitled to regard the failure as serious. The company had recently received an improvement notice which emphasised the need to segregate pedestrians and vehicles. Nevertheless, the description of the company as reckless was unjustified. Recklessness connotes a particularly high level of culpability. The company had carelessly failed to assess and address the risk created by temporary storage arrangements, but there was no culture of disregarding safety or of sacrificing safety for business advantage.

4. Health and safety fines are not governed by a tariff. The wide variation between offences prevents that approach. Sentences should nevertheless be proportionate and should not be wholly arbitrary. A review of recent appellate decisions may give a broad indication of the appropriate level, while allowing for matters such as means and affordability.

5. Here, the £150,000 fine was disproportionate to the company’s culpability, including the aggravating features, its prompt guilty plea, its good safety record, co-operation, and remedial action. A fine of £60,000 was appropriate. Although the claimed prosecution costs appeared high, they were not shown to be so manifestly excessive that the judge had erred in using them as the basis for the discounted order. The court allowed 14 days for payment and made no order from Central Funds.

• Court of Appeal (Criminal Division): in [2007] EWCA Crim 3396, allowed the appeal against the amount of the fine and substituted a fine of £60,000. It dismissed the appeal against the costs order.
• Crown Court at Northampton: His Honour Judge Alexander QC sentenced the company on its guilty plea to a fine of £150,000 and ordered it to pay £9,460 costs.