Palmer Timber Ltd, R v

An agreed sentencing position on culpability or harm is relevant and should be carefully considered, but it cannot bind the sentencing court. The court must assess the likelihood of harm on all the evidence.

For health and safety sentencing, the likelihood assessment requires separate consideration of the likelihood of the event and the likelihood that it will cause the stipulated level of harm. A corporate fine must be proportionate to the offender’s overall means. The fact that it exceeds annual pre-tax profit does not confine it to the most serious cases.

The appellant company pleaded guilty to failing to organise its workplace so that pedestrians and vehicles could circulate safely, contrary to the Workplace (Health, Safety and Welfare) Regulations 1992 and the Health and Safety at Work etc Act 1974. Two employees were struck by a Combi-lift vehicle in a busy yard, causing severe and life-changing injury to one of them.

His Honour Judge Berlin, sitting in the Crown Court at Wolverhampton, assessed culpability as high and harm as category 1 under the Health and Safety Offences Guideline. He imposed a fine of £730,000 after credit for an early guilty plea. The company appealed with leave, challenging the culpability and harm assessments and the proportionality of the fine.

1. Appeal dismissed. The sentence of a £730,000 fine, payable over four years, was neither wrong in principle nor manifestly excessive.

2. The incorrect recording of section 4, rather than the general committal power in section 3, of the Powers of Criminal Courts (Sentencing) Act 2000 did not invalidate the committal. The Magistrates’ Court had the necessary jurisdiction: R v Ayhan [2011] EWCA Crim 3184.

3. The judge was not bound by the parties’ agreement that the likelihood of level A harm was medium. Such agreement should be weighed carefully, but sentencing remains a judicial function. The likelihood or chance of harm is for the sentencing judge to assess on all the evidence: R v ATE Truck and Trailer Sales Limited [2018] EWCA Crim 752; R v Diamond Box Limited [2017] EWCA Crim 1904.

4. The judge was entitled to place culpability at the upper end of the high category. The company had allowed the unsafe mixing of pedestrians and vehicles to continue for a long period. It had not undertaken a suitable risk assessment for the Combi-lifts, despite known blind spots and prior vehicle-pedestrian contact. Limited measures such as a one-way system, speed limits and driver instruction did not address the core danger.

5. The likelihood assessment did not confuse the risked harm with the likelihood of its occurrence. The judge separately considered the likelihood of a collision and the likelihood that such a collision would cause death or the most serious injury. The congested and noisy yard, together with the Combi-lifts’ blind spots, justified a finding of high likelihood of level A harm. The actual injuries were life-threatening and death was avoided by chance.

6. The fine was proportionate at step 3 of the Guideline. The court could take account of the company’s financial resources, its expenditure on site development before addressing the safety risk, and the time allowed for payment. The Guideline does not restrict fines exceeding annual pre-tax profit to the most serious cases.

• Court of Appeal (Criminal Division): The company’s appeal, brought with leave against sentence, was dismissed.

• Crown Court at Wolverhampton: On 22 June 2018, His Honour Judge Berlin imposed a fine of £730,000, payable over four years, after an early guilty plea.

• Magistrates’ Court: The company pleaded guilty and was committed to the Crown Court for sentence.