Exolum Pipeline System LTD v Health And Safety Executive

For offences under the Health and Safety at Work etc. Act 1974, risk means the possibility of danger, rather than actual danger. A material risk is assessed objectively. It does not require actual injury, an identified ignition source, or proof that the precise leak mechanism would have caused harm. Excavating a high-pressure pipeline suspected, and later found, to be leaking petrol exposed workers to a risk that was neither trivial nor fanciful. On sentence, appellate interference with evidence-based assessments of culpability and harm is limited, but a manifestly excessive fine may be replaced. The fine should reflect the departure from the required standard and have real economic impact, including an adjustment for substantial turnover where appropriate.

Following a jury trial at the Crown Court at Great Grimsby, Exolum was convicted of two offences under sections 2(1) and 3(1) of the Health and Safety at Work etc. Act 1974, contrary to section 33(1)(a). The offences concerned the excavation of a temporary clamp on a high-pressure petroleum pipeline while a leak was suspected. Fines totalling £2.3 million were imposed, together with prosecution costs.

Exolum renewed its application for leave to appeal against conviction, arguing that there was no material risk and no case to answer. It also appealed against sentence as manifestly excessive. The central issues were whether the risk was merely hypothetical and whether the assessment of culpability, harm and fine was justified.

1. Disposition. The renewed application for leave to appeal against conviction was refused. The appeal against sentence was allowed and the total fine was reduced to £1.5 million.
2. Conviction. Under the Health and Safety at Work etc. Act 1974, risk has its ordinary meaning of the possibility of danger rather than actual danger. The prosecution need not prove that a particular leak mechanism would necessarily cause injury. The existence of a foreseeable risk is an objective issue of fact.
3. Excavating a high-pressure pipeline which was suspected, and was in fact found, to be leaking petrol exposed workers to a material risk that was neither trivial nor fanciful. An identifiable ignition source was not required. The fact that the leak proved small and that later precautions controlled it did not negate the earlier exposure to risk; those matters went to whether all reasonably practicable steps had been taken. Both limbs of R v Galbraith [1981] 1 WLR 1039 were satisfied, and the case was properly left to the jury.
4. Sentence. The Court should be slow to interfere with the trial judge’s assessment of culpability and harm based on evidence heard at trial. The judge was entitled to place the offending in Harm Category 2, level A, and to find high culpability, particularly because Exolum failed to act on information received before and during the excavation. However, the uplift for the number of workers exposed was excessive, and greater credit was required for mitigation.
5. The fine should reflect the extent to which the offender fell below the required standard and should have a real economic impact sufficient to promote compliance. The adjustment for Exolum’s substantially greater turnover was justified. The sentences were quashed and replaced by fines of £600,000 on count 1 and £900,000 on count 2, to run consecutively. The victim surcharge was payable and the prosecution costs order remained unchanged.

• Court of Appeal (Criminal Division). The renewed application for leave to appeal against conviction was refused. The sentence appeal was allowed and the total fine reduced from £2.3 million to £1.5 million: [2024] EWCA Crim 947.
• Crown Court at Great Grimsby. Following conviction on two counts, the court imposed fines of £1 million and £1.3 million, to run consecutively, together with prosecution costs.