Squibb Group Ltd, R v

An appeal based on inconsistent jury verdicts succeeds only where no reasonable jury, properly applying the evidence, could have reached the differing verdicts and the inconsistency makes the conviction unsafe. The inquiry into what is reasonably practicable balances the degree of risk against the benefit and burden of preventative measures. Different exposure levels may therefore justify different verdicts for employees and non-employees.

A separate unanimity direction is unnecessary where different factual phases form one continuing breach founded on the same alleged omission. In sentencing, the likelihood of long-term physical harm should, where possible, be assessed from the available scientific evidence rather than supposition.

The appellant was a demolition subcontractor on a school refurbishment project. Asbestos was disturbed during works, exposing its employees and others to health risks. At Southwark Crown Court it was convicted under section 2(1) of the Health and Safety at Work Act 1974 for failing to protect its employees, but acquitted under section 3(1) in relation to non-employees. It was fined £400,000.

It appealed against conviction on the grounds that the verdicts were inconsistent, that the jury should have been required to return the same verdict on both counts, and that separate directions were required for works undertaken in April and July. It also challenged the fine, principally on culpability and the likelihood of harm.

1. The appeal against conviction was dismissed. The applicable test for inconsistent verdicts, drawn from R v Durante [1972] 56 Cr App R 708, is stringent. Intervention is justified only where the differing verdicts cannot rationally stand together and make the conviction unsafe. That threshold was not met.

2. The jury could rationally distinguish the two counts under sections 2(1) and 3(1) of the Health and Safety at Work Act 1974. Squibb’s employees undertook the demolition and rubble removal and were exposed to materially greater asbestos risk. The work was also managed in ways which reduced, though did not remove, the risk to others. Since reasonable practicability requires a balance between the degree of risk and the burden of precautions, the greater employee risk could require more onerous preventative steps. The acquittal on the non-employee count was therefore compatible with conviction on the employee count.

3. The judge was right to direct separate consideration of the counts and was not required to direct that the April and July works be treated as discrete allegations. Unlike R v Beckingham [2006] EWCA Crim 773, which concerned multiple alternative particulars of breach, the prosecution alleged one continuing failure: before beginning demolition, Squibb should have obtained, read and acted on the asbestos report. The factual differences between the two phases did not alter that case or the defence advanced to it. A separate unanimity direction would have introduced an unreal distinction.

4. The sentence appeal succeeded. The judge was entitled to categorise culpability as high because a specialist contractor lacked a proper system for obtaining, reviewing and acting on an asbestos survey. However, the likelihood of fatal asbestos-related harm could not rationally be assessed by impression. The unchallenged expert evidence was the best available scientific evidence and showed a low, not medium, likelihood of harm. The court therefore substituted a fine of £190,000. The order for £175,000 prosecution costs remained undisturbed.

• Court of Appeal (Criminal Division): In [2019] EWCA Crim 227, dismissed the appeal against conviction but varied the sentence by substituting a £190,000 fine.
• Southwark Crown Court: Convicted Squibb under section 2(1) of the Health and Safety at Work Act 1974, acquitted it under section 3(1), and imposed a £400,000 fine.