FJ Chalcroft Construction Ltd, R. v

An appellate court should not interfere with a financial penalty for health-and-safety offending where the sentencing judge has carefully assessed the gravity, duration and consequences of the breaches, the offender’s culpability, mitigation and ability to pay, and the resulting penalty is neither manifestly excessive nor wrong in principle.

There is no tariff for such fines. The facts are highly variable, and statistical averages provide only limited assistance. Penalties must be sufficiently substantial to promote safe working practices, deter serious breaches and reflect the public concern caused by avoidable loss of life.

The appellant construction company pleaded guilty at Nottingham Crown Court to two offences of failing to discharge duties under the Health and Safety at Work Act 1974. An electrician employed by a subcontractor died after falling from a mezzanine floor during warehouse construction.

Following a lengthy Newton hearing, the Recorder found inadequate safety management and a number of sustained failures concerning work at height, edge protection, netting, exclusion zones and unsafe working arrangements. He imposed fines totalling £260,000, after allowing 15 per cent credit for the guilty pleas, and ordered £80,000 prosecution costs.

The company appealed against sentence, contending that the starting point and overall penalty were excessive having regard to its mitigation, financial position and the general range of health-and-safety fines.

1. Appeal dismissed. The total fine of £260,000 was neither manifestly excessive nor wrong in principle. The Recorder had conducted a lengthy Newton hearing, made detailed findings, and was particularly well placed to assess the proper penalty.
2. The Recorder was entitled to treat the case as very serious. The death was avoidable, the company had failed to respond to warnings from experienced subcontractors, and the unsafe conditions created a high risk over a significant period. The court also accepted that the Recorder had properly allowed for the company’s previous good record, its remedial steps and credit for the guilty pleas.
3. The sentencing approach properly reflected the guidance in R v Howe & Sons Engineers Ltd [1999] 2 Cr App R(S) 37 and R v Balfour Beattie [2006] EWCA Crim 1586. Health-and-safety penalties must support a safe environment, deter breaches that expose people to danger, and reflect the seriousness of preventable fatalities. The court also accepted that the company could afford the fine, having regard to its financial resources rather than turnover alone.
4. There was no sentencing tariff. Average penalties could provide some general context but were of limited assistance because health-and-safety cases vary greatly. The court upheld the Recorder’s overall evaluative judgment.
5. The court refused the Crown’s application for the costs of its attendance at the appeal. The appeal had been confined to sentence and had not challenged the Recorder’s factual findings.

• Court of Appeal (Criminal Division): The company’s appeal against sentence was dismissed: [2008] EWCA Crim 770.
• Crown Court at Nottingham: On 29 March 2007 the company pleaded guilty to two offences under the Health and Safety at Work Act 1974. Following a Newton hearing, it was sentenced on 12 October 2007 to fines totalling £260,000 and prosecution costs of £80,000.