Electricity North West Ltd, R v

Proper planning of work at height under regulation 4(1) of the Work at Height Regulations 2005 is a strict requirement. A failure to plan for suitable equipment to be readily available may breach that duty even where the failure did not create a reasonably foreseeable risk of harm.

On an inconsistent-verdict appeal, the conviction must first be supported by evidence. The appellant must then show that no reasonable, properly directed jury could have returned the verdicts and that appellate intervention is required. In sentencing a health and safety offence, culpability and risk must reflect the offending established by the verdicts; an upward adjustment for a very large organisation is not automatic.

The appellant electricity-network operator was prosecuted after a linesman fell to his death while clearing ivy from a wooden pole. The jury acquitted it of failing to make a suitable and sufficient risk assessment under regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 and of breaching section 2(1) of the Health and Safety at Work Act 1974. It convicted the company of failing properly to plan work at height, contrary to regulation 4(1) of the Work at Height Regulations 2005.

The Crown Court at Preston imposed a fine of £900,000. The company appealed both conviction and sentence. The central issues were whether the conviction could stand with the acquittals and whether the fine properly reflected the culpability and harm established by the verdicts.

1. The appeal against conviction was dismissed. Regulation 4(1) of the Work at Height Regulations 2005 imposed a strict requirement to plan work at height properly. A lack of reasonably foreseeable risk of harm did not answer a charge based on defective planning. The inherent danger of work at height justified that approach.
2. There was an evidential basis for the conviction. Clearing ivy from the pole required a mobile elevated work platform (MEWP), but no plan ensured that one would be readily available when the linesmen undertook that work. The jury’s finding that the company had carried out an adequate risk assessment, and its acquittal on the general health-and-safety count, did not negate that distinct planning failure.
3. The verdicts were not impermissibly inconsistent. Applying the guidance in R v Fanning and others [2016] EWCA Crim 550, the court first found that the conviction was supported by evidence. The company had not shown that no reasonable properly directed jury could have reached the three verdicts. A jury directed to consider counts separately need not return matching verdicts, and its deliberations are not to be subjected to excessive logical analysis.
4. The appeal against sentence was allowed. The Health and Safety Offences Guidelines applied to the conviction under section 33(1)(c) of the Health and Safety at Work Act 1974. However, the evidence did not justify high culpability. The established failure to ensure a MEWP was readily available placed the offending between low and medium culpability.
5. The seriousness of the harm risked was level A because work at height is inherently dangerous, but the likelihood of harm was low in light of the acquittals. The offence therefore fell within harm category 3. No further upward adjustment for turnover was needed to achieve a proportionate sentence. The fine was reduced from £900,000 to £135,000.

• Court of Appeal (Criminal Division): In [2018] EWCA Crim 1944, dismissed the appeal against conviction but allowed the appeal against sentence, reducing the fine to £135,000.
• Crown Court at Preston: On 23 March 2017, convicted the company of breaching regulation 4(1) of the Work at Height Regulations 2005, while acquitting it on the other two counts. On 31 March 2017, imposed a fine of £900,000.