TDG (UK) Ltd, R. v

There is no fixed tariff for fines for fatal health and safety offences. Sentences must nevertheless be proportionate and may be checked against decided cases to obtain a broad indication of level.

For a corporate offender, long-standing systemic safety failures and a resulting death are serious aggravating features. The court must also give proper weight to an early guilty plea, effective remedial action, the absence of safety being sacrificed for profit, the company’s means, and any co-accused’s negligence as the immediate cause. A fine which gives insufficient weight to material mitigation or causation is disproportionate and should be varied.

The appellant company pleaded guilty at Coalville Magistrates’ Court to offences under section 2 of the Health and Safety at Work Act 1974 and regulation 3(1) of the Management of Health and Safety at Work Regulations 1999. It was committed for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.

At Leicester Crown Court, the Recorder imposed fines totalling £325,000 and ordered costs. The offences arose after a driver was fatally crushed between trailers at the appellant’s depot. The appellant had allowed deficient practices for uncoupled trailers, failed to enforce its own safety policy, and had not completed an adequate risk assessment.

The company appealed on the ground that the total fine was manifestly excessive. The central issue was whether the Recorder had imposed a proportionate financial penalty after properly weighing aggravation, mitigation and the co-accused’s immediate negligence.

1. Appeal allowed. The court quashed both fines and substituted fines totalling £275,000. The order for £25,000 costs remained.

2. There is no set tariff for fatal health and safety offences. Sentences should not be arbitrary, however, and prior decisions may provide a broad sense of the appropriate level. The court treated R v Colthrop Board Mill Limited [2002] EWCA Crim 520 as the closest available guidance on the range of financial penalties for a fatality.

3. The Recorder had correctly identified grave aggravating features. The appellant’s systemic failures had persisted for years. Its own procedures had not been implemented or enforced, the risk of unintended trailer movement was serious, and a death resulted.

4. Mitigation remained significant. The failures did not arise from putting profit before safety. The appellant had taken substantial corrective action after the accident and had pleaded guilty at the earliest opportunity. Its financial means did not prevent a substantial fine.

5. The company’s culpability was not less than that of the co-accused. Its systemic failures were serious and it could properly be viewed as bearing greater responsibility. Nevertheless, the co-accused’s negligent failure to apply the tractor handbrake was the immediate cause of the accident and required weight in the sentencing balance.

6. The pre-plea starting point of about £480,000 was too high in the circumstances. The Recorder had attached too little weight to the co-accused’s part and, when that was combined with the guilty plea, the total fine was disproportionate. The court substituted £225,000 for the section 2 offence and £50,000 for the regulation 3 offence. The appellant was also awarded its costs of the appeal from central funds.

• Court of Appeal (Criminal Division): Granted leave and allowed the appeal against sentence, quashing the fines imposed below and substituting fines totalling £275,000: [2008] EWCA Crim 1963.
• Leicester Crown Court: The Recorder sentenced the appellant to fines of £250,000 for breach of section 2 of the Health and Safety at Work Act 1974 and £75,000 for breach of regulation 3(1) of the Management of Health and Safety at Work Regulations 1999, with £25,000 costs.
• Coalville Magistrates’ Court: The appellant pleaded guilty and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.