Guy's and St Thomas' NHS Trust, R. v

A sentencing court should not impose a financial penalty on a not-for-profit body performing a public duty where, absent actual fault by the body, the penalty would materially impair its ability to provide that public service. The public interest is not served by diverting an excessive sum from that purpose.

That principle does not preclude a fine for a serious strict-liability offence committed through employees. The court must balance the need to mark the offence and encourage continued vigilance against the immediate detriment to the public caused by reducing the body’s resources.

The Trust pleaded guilty at Westminster Magistrates’ Court to supplying a prescribed medicinal product not of the specified nature or quality, contrary to Medicines Act 1968, section 64(1). It was committed to the Crown Court for sentence.

The product, prepared for a premature baby, contained a massive glucose overdose following errors by a trained technician and supervisor. The baby died the next day; hyperglycaemia was one contributing factor. Southwark Crown Court fined the Trust £75,000.

The Trust appealed against sentence, contending that it had no management fault, that its earlier response to a similar incident had been reasonable, and that the fine would detrimentally affect healthcare provision.

Disposition

1. The appeal was allowed. The fine of £75,000 was quashed and a fine of £15,000 was substituted.

2. The offence under section 64 was, for practical purposes, one of strict liability. The Trust’s liability arose vicariously from two staff errors. Work had been properly delegated, the employees had been properly trained, and the Trust had a reasonable system of supervision. Its response to the earlier similar incident was also reasonable.

3. Where a not-for-profit body exists to perform a public service, and a failure occurs without actual fault by the body, the court should not impose a fine that materially impairs its ability to discharge that duty. Such a penalty diverts resources from the public beneficiaries and does not serve the public interest. This principle was consistent with Milford Haven Port Authority [2000] 2 Cr App R(S) 423.

4. A discharge was nevertheless inadequate. The offence remained serious, and a fine can promote vigilance even where there was no prior management negligence. The court must, however, balance that potential benefit against the actual and immediate effect of removing money from healthcare provision.

5. The sentencing judge gave insufficient weight both to the absence of management fault and to the public detriment caused by a £75,000 fine. The comparison with Southampton University Hospital NHS Trust [2006] EWCA Crim 2971, in which a lower fine was imposed despite serious management errors, reinforced that conclusion. A £15,000 fine achieved a fair balance.

• Court of Appeal (Criminal Division) — Allowed the Trust’s appeal against sentence and substituted a £15,000 fine for the £75,000 fine: [2008] EWCA Crim 2187.

• Southwark Crown Court — On 23 May 2008, fined the Trust £75,000 and ordered costs after committal for sentence.

• City of Westminster Magistrates’ Court — On 13 March 2008, the Trust pleaded guilty to an offence under section 64(1) of the Medicines Act 1968 and was committed for sentence.