Thelwall, R. v

An appellate court will not interfere with a sentence where the judge had an evidential basis for the assessed culpability and risk of harm, properly treated a relevant previous conviction as aggravating, and the resulting sentence was not manifestly excessive.

Where a Sentencing Council guideline applies, it ordinarily governs sentencing. Earlier appellate decisions about the application of a guideline will rarely assist. Exceptionally, the court may clarify a genuinely unclear guideline, but such clarification is likely to be overtaken by revision of the guideline.

The applicant, the sole director of a company hiring mobile access equipment, pleaded guilty under section 37 of the Health and Safety at Work Act 1974. The company also pleaded guilty after an employee was fatally injured when a mobile elevating work platform toppled while being loaded onto a flatbed truck.

At Manchester Crown Court, the applicant received 12 months’ imprisonment. The sentencing judge treated the absence of adequate training, anchoring and risk assessment, together with a previous health-and-safety conviction involving a death, as demonstrating high or very high culpability.

The appeal challenged the assessment of culpability and harm, the use of the previous conviction, and the length of the custodial sentence.

1. Appeal dismissed. The sentencing judge was entitled to find that the applicant’s culpability was high, or on the cusp of high and very high. The finding was supported by his cavalier attitude to health and safety, including the lack of proper training, risk assessment and supervision in loading the equipment.
2. The judge was also entitled to assess the risk of serious harm at the level adopted. Loading heavy machinery onto a flatbed truck without proper training and supervision created an evident risk of severe injury if it toppled.
3. The applicant’s earlier conviction for a health-and-safety breach resulting in a death was materially aggravating. Although its circumstances differed, it should have impressed upon him the grave consequences of inadequate procedures, training and supervision. There was therefore no proper criticism of the sentencing approach and no basis to regard the 12-month sentence as manifestly excessive.
4. Additional observations. Sentencing Council guidelines, rather than appellate case law, ordinarily govern sentencing. Decisions explaining how a guideline operates will rarely assist in later appeals, save for rare cases in which a guideline is genuinely unclear.
5. It is impermissible to place before a sentencing judge online articles or summaries of first-instance sentences as comparators. The judge must apply the applicable guideline. Health-and-safety prosecutions are ordinary criminal cases and should be conducted, at trial and on appeal, on that basis.
6. The court further stated that R v Friskies Pet Care UK Ltd [2000] 2 Cr App Rep (S) 401 no longer had material relevance because its schedules had been superseded by the Criminal Practice Direction. Respondent costs in such appeals should ordinarily reflect the position of the Crown Prosecution Service; exceptional claims require exceptional circumstances.

• Court of Appeal (Criminal Division) — leave to appeal against sentence was granted, but the appeal was dismissed: [2016] EWCA Crim 1755.
• Crown Court at Manchester — on 26 August 2016, the applicant was sentenced to 12 months’ imprisonment following his guilty plea under section 37 of the Health and Safety at Work Act 1974.