R v Friskies Petcare (UK) Ltd

In the Court of Appeal Criminal Division

Friday 10th March 2000

B E F O R E

Lord Justice Beldam

and

Mr Justice Silber

and

The Recorder of Leeds
His Honour Judge Brian Walsh Qc

1.	RECORDER OF LEEDS: Before turning to the merits of this particular appeal, we would like to say something by way of guidance for the conduct of the increasing number of cases that are coming before the courts in Health and Safety Act prosecutions. 

2.	The principles to be applied when considering sentence are those now well-known principles set out initially in the judgment of this Court through Scott Baker J in R v Howe Engineering [1999] 2 All ER 249, where he sets out the typical, but not exclusive, aggravating and mitigation circumstances that may apply in any particular case. Sentencing courts, and indeed this Court, routinely take those factors into account by way of guidance, the principle having been approved by the Lord Chief Justice. Problems can, however, arise when there is dispute as to whether the lower court sentenced upon the basis on which the case was presented to it. This case illustrates that problem very well and we recommend, that in this type of case, when the Health and Safety Executive commence proceedings, it should list in writing for the assistance of the court not merely the facts of the case, but the aggravating features, as set out in the Howe case, which it says exist in the particular case. That document can be served upon the Court and upon the defendants for the latter to consider. If it be, as very frequently is the case, that the defendants plead guilty, the defendants themselves should submit a similar document in writing outlining the mitigating features that the court is to take into account. It may well be - and no doubt in many cases is - the case that by the time the matter comes to court there is agreement between the parties as to which are the relevant mitigating and aggravating features that the court should take into account. If the plea therefore is upon an agreed basis, that agreed basis should be put into writing so that there is no doubt whatever what is the proper basis upon which the court should pass sentence. 

3.	This case illustrates the disadvantage that occurs when that step is not taken. To illustrate it just in a very simple fashion: the question of whether this is a case of - using simple terms - putting profit before safety. Had this case been reduced to writing on the basis of plea, it is plain, in our view, that the lower court would not have come to the decision that it did on that particular point. So, if an agreed basis of plea can properly be put before the court in writing, that should be done; if there is a disagreement of substance then the judge presiding at the lower court can decide that the case may merit a Newton hearing so that, if a particular aggravating feature needs to be discussed it can be and all sides know what the issues are and the court can make its decision appropriately. So we strongly recommend that a procedure of that nature, which is not unknown in other types of criminal case, should routinely be adopted in Health and Safety Act prosecutions. 

4.	Turning now, therefore, to this case. On 30th July 1999 in the Crown Court at Isleworth the appellants, having previously pleaded guilty on 17th June before magistrates and been committed for sentence, were sentenced as follows: on the first offence of failing to discharge the duty imposed by section 2(1) of the Health and Safety at Work Act 1974, they were fined £600,000 and ordered to pay prosecution costs. On the second offence of contravening Regulation 3 of the Management of Health and Safety at Work Regulations 1992, there was no separate penalty, the whole matter being dealt with under the umbrella of the first offence. 

5.	The appellants appeal against that sentence by leave of the single judge. 

6.	The background can be stated as follows. The case arises out of the tragic death on 28th August 1998 of Bryan Wilkins, a 45-year-old Process Technician who was employed by the appellants. He was a welder working at their Southhall premises when he was electrocuted. 

7.	The appellant company was a large manufacturing concern, with seven production plants in the United Kingdom, employing approximately 1,430 people, and there were 182 at this particular factory, which operated round the clock manufacturing cat food. There were eleven stainless steel silos, in which meat was mixed by ribbon stirrers (metal stirrers) attached to a revolving cross-shaft found at the bottom of each silo. From time to time the ribbon stirrers would break, and repairs were effected on site by the company's process technicians, of whom Mr Wilkins was one, who would have to get into the silo itself. Access was gained by walking along a gantry positioned above and through a gate. The practice of the company appeared to have been for the gate to remain locked even when technicians had to get access to a silo, since to unlock it would automatically suspend the process below. When work was taking place in a silo, the current to the stirrer rods in the auger screw (which was the used product at the end of the process) was turned off by the electricians. 

8.	On 28th August 1998 the deceased went to silo number 8 to repair a ribbon stirrer. He was accompanied by another process technician, Alexander Mykoloshyn. The normal method by which the stirrers would be repaired would be by being heated up, bent back into shape and rewelded. For this purpose an Oxford arc welder was used to weld the broken stirrer, the welder being the only machine of sufficient amperage at the factory able to complete the task. 

9.	The principle in arc welding is to use heat to fuse together separate metal parts. High temperatures of up to 4000 degrees are used to melt these metal parts to be joined, and filler from an electrode was added to the parts used when cool. The heat comes from an electric arc, and the arc occurs between the metal welding rod held by the welder himself in a gun and the metal to be joined - in this case the stirrer. For the arc to go from the welding rod to the metal to be welded requires the two to be joined in a circuit, and a lead is attached to the object to be welded and fed back to the welder itself - this is called the 'welding return'. At the appellants' factory the welding return was attached to the outside of the individual silo as the mixing rods were an integral part of this structure. The electrode is made of a metal, which is consumed in the welding process, adding metal to the joints, and the electrodes themselves had a covering of flux which aided the welding process. 

10.	The deceased went into the silo, where the necessary equipment was assembled, and the arc welding unit was positioned outside and connected up to the power socket by means of an extension lead. The welding return was connected to the outside of the silo and trailed back to the welding unit. The gun was attached by means of cables to the welding unit outside the silo and the cable connecting it to the welding machine was draped over the edge of the silo. The deceased (who was wearing a protective mask) began to weld the broken ribbon stirrer. He was assisted by Mr Mykoloshyn, who illuminated the work by means of a hand-held battery powered torch. Two sides of the welding were completed and the rod was then manually rotated in order to give access to the other side, when Mr Mykoloshyn noticed that the deceased was crouching down in the silo, holding the welding rod holder in his right hand and a welding rod in his left in the area of his chest. He did not start to weld. Mr Mykoloshyn realised that he was undergoing an electric shock; and it appears that the deceased was probably in the process of changing the welding electrode at the time when he was electrocuted. 

11.	Mr Mykoloshyn got out of the silo and went to turn off the electricity at the power point, which, we observe, was some 30 metres away - in the ultimate, clearly far too far, as the criticism made by the Health and Safety Executive Inspector makes clear. This necessitated him having to climb up the ladder, move along the gantry, negotiate the locked gate at the end of the silo and reach the switch. He shouted for help from others as he went, but when he returned to the silo the deceased was slumped on the floor and apparently not breathing. In the prevailing conditions the voltage being used would have been sufficient to cause heart arrest or fibrillation almost immediately and the cause of death clearly was electrocution. 

12.	At the time of the accident the deceased had been wearing steel toe-capped boots, normal poly-cotton work trousers and gloves, which were half material and half leather, but no other protective clothing. 

13.	The report of the Inspector concluded that the electrocution was the result of the deceased coming into contact with the exposed and live parts of the welding electrode holder and/or the welding electrode itself while he was in contact with the welding return circuit, that is to say the surrounding metal work of the silo. Putting it in simple terms: a complete circuit had been created by his coming into contact with the surrounding metal work of the silo, which meant that the current passing through the equipment ran through his body. 

14.	The causative factors assessed by the Inspector were these: the voltage existing between the live parts of the welding electrode holder and all parts of the silo will have been 86 volts A/C at the time of the accident. Voltages of 50 volts A/C are considered to be the threshold above which precautions must be taken to control risk of electrocution within an unconfined and non-conductive dry location. The threshold voltage reduces to 25 if the work location is confined and conductive or is in wet or damp conditions. The work carried out by the deceased on this occasion was being done in a confined and conductive location; the factory was a particularly humid environment of itself, with a large amount of sheet machinery and cooked meats creating condensation. The conditions in the silo itself were especially hot, it being a confined space, with limited air flow and exacerbated by the heat generated by the welding process. Mr Mykoloshyn pointed out that the heat at the time of the accident was considerable and that he and the deceased were both perspiring considerably. The dimensions of the silo afforded little room for either person to work; the base of the silo being curved did not allow for sureness of footing; and the deceased would have been forced up against the silo to achieve a suitable position for welding. The surface against which he was pressed was metal and therefore highly conductive. His clothing did not provide sufficient resistance. The prevailing humidity would have lessened the effect of fortuitous resistance, that is to say resistance effected by clothing, skin and the like, between his body and the surrounding metal work of the silo, all of which were connected to the welding return circuit. His final conclusion was that there was no system in place which alerted the technicians to risks inherent in their activities or which sought to ascertain their state of knowledge as regards risk. He therefore concluded that there were breaches under section 2(1) and the Management of Health and Safety Work Regulations, Regulation 2. 

15.	The breaches had been going on for a considerable time. We are reminded that the system had been in operation under the previous owners of this factory for some three years. The appellants came into ownership in May 1998, some three months before the accident; but, as Mr Cooper concedes, they took over, inherited and were responsible for, and ought properly to have inspected at, before or immediately after the takeover the system of work in operation and are therefore responsible clearly for what went on. The underlying cause of death was that welding, with potentially lethal voltages, was taking place in a confined, conductive and damp environment. It was also the case that no proper assessment of risk associated with this activity had been done and no steps had been taken to avoid it. Welding in those circumstances is potentially dangerous; and although this was not a matter accepted at the trial by the appellants' counsel, the Inspector said it was well known in the trade as a whole. Indeed in opening the case to the court Mr Ageros said the more homely analogy would be like using a welder when sitting in a bath full of water. We take the view that, even without the assistance of the Health and Safety at Work Act, the dangers of such an activity without the necessary precautions should have been apparent to anybody. 

16.	When sentencing, the trial judge said that this was a very serious matter. He took into account the prompt admission of responsibility, together with steps taken to remedy deficiencies identified and the fact that the company had a good safety record. He said that all those would be taken into account. 

17.	When one looks, he said, at the aggravating features and how far short of the appropriate standards the appellants fell in failing to meet what was reasonable and practicable, he said they fell well short with regard to the silo because safety precautions were virtually nonexistent. He regarded the loss of life properly as an aggravating feature. 

18.	One of the things, however, that he did say - and this has caused one of the principal grounds of appeal - was that he viewed this as a case of, without using some of the flamboyant language that can be used in this kind of case, putting profit before safety. 

19.	That is one of the two principal grounds of appeal put forward before us by Mr Cooper on behalf of the appellants. Mr Cooper, dealing first with the profit before safety matters, referred to the sentencing remarks at page 37F of the transcript, where the judge and his colleagues say that it was an aggravating feature of the case that by continuing to process the other silos while a man is inside one of them the appellants were putting profit before safety. Mr Cooper complains that that is not how the prosecution presented the case at trial. The opening remarks relevant to that point are at page 4G and following of the transcript of the hearing in the lower court. Counsel referred to the locked gate and the effect that it would have, but no more mention of it was made and nothing was said by the prosecution to indicate that they regarded this as an aggravating feature. Furthermore, in mitigation, page 31D Mr Cooper said: 

"There is no suggestion here of cost cutting or putting profit before safety." 

20.	And again at pages 32H-33A: 

"There is no evidence of financial profit being made, cost cutting or deliberate breaches." 

21.	No one, neither counsel for the prosecution nor the judge, intervened in his mitigation or said at its conclusion words to the effect: 'Well, wait a moment, we think there was such a factor. Would you kindly justify what you say?' So he was therefore not given an opportunity to know that the court thought that such an aggravating feature might exist, nor was he given an opportunity to deal with it. 

22.	It would be already clear from what we have said and interventions earlier that we think that he had a perfectly valid point in this regard. This matter is further settled, in our view, by a recent letter dated 7th March 2000, which we have seen, from Mr Hales of the Health and Safety Executive to the appellants' solicitors, in which it is said at paragraph 3: 

"It is accepted that the case for the Health and Safety Executive was not put, either in the Magistrates' Court or in the Crown Court, on the basis that this was a case where the company was putting profit before safety because of the closed gantry gate." 

23.	As my Lord said in the course of the argument, we find that this case, like so many cases, is one where no one consciously sits down and works out the expense of shutting a particular section down for a period of time as against safety considerations. It is one of those difficult things where no attention is paid, no risk assessment is made and people get on with the job and do it. One of the failings that brings companies before the court is the fact they have not taken a proper risk assessment in cases of this nature. 

24.	So we start therefore from the first point, which is that the fine of £600,000 takes into account an element which clearly it should not do. Therefore, in our judgment, the lower court was wrong in finding the existence of this aggravating feature to be proved. Therefore we turn to consider the second point, the general level of fines in this area. 

25.	Our attention has been drawn by Mr Cooper to a list of fines imposed in cases of this nature over the last two or three years, citing the most up-to-date examples. His list until this morning set out fourteen such cases and another three have been shown to us just before we came into court. We have already referred to the principles set out in R v Howe Engineering. It is not necessary for us here to read the headnote or the particular list of aggravating or mitigating features for the purposes of this case. 

26.	Those reported cases show that fines in excess of £500,000 (as this one was) tend to be reserved for those cases where a major public disaster occurs, for example, the collapse of the railway tunnel constructed under Heathrow Airport, or derailment of railway trains - that is to say, cases where the breaches of regulations put large numbers of the public at risk of serious injury or more. This is not one of those cases. 

27.	There was a fine of £425,000 imposed upon a major national retail employer for breaches at one of its key distribution centres, but that was a case in which, per the trial judge, Kay J: 

"A picture was revealed of working practices that dated back to the Dark Ages of work safety and where safety was deliberately sacrificed for profit." 

28.	That was not this case. 

29.	What is the right level here? In our view, applying the Howe principles, the aggravating features were: the death of Mr Wilkins; the position of the 'off' switch, which was too inaccessible if anything went wrong; the fact that the breaches had been going on for some time; the fact that no employee had his attention drawn to the relevant Health and Safety Executive pamphlets entitled "Electricity Safety in Arc Welding" and the "Health and Safety and Welding and Allied Processes"; the fact that the appellants conducted no assessment of the risk involved in repairing ribbon stirrers in situ; and that this was a serious and obvious breach of the appellants' duty under the regulations. The judge said as to this - and we agree with him in this part of the remarks: 

"The appellants fell a long way short of doing what was reasonable and practical." 

30.	The mitigating features are the appellants' prompt admission and pleas of guilty; their good health and safety record over the years - more particularly set out in the report written by Dr Nellist in bundle 1 of the appellants' documents; and the steps taken since the accident to improve safety, all done with the approval of, and confirmation by, the Health and Safety Executive officers who were in court listening to Mr Cooper outlining these matters and who agreed that the appellants now have "a high level of commitment to safety". (The reference to this is at the transcript pages 29G and 30A-G.) 

31.	We also have to take into account the financial position of the appellants, who have a very substantial business, with a considerable turnover, generating pre-tax profits at the relevant time of some £40 million. It must be remembered that the purpose of prosecutions under these regulations is not compensation and that the level of fine is not intended in any way to be a measure of the value of human life. 

32.	Taking all these factors into account, in our judgment the appropriate fine for these particular matters is £250,000. We therefore quash the original fine and substitute a fine of £250,000 for it. To that extent, this appeal is therefore allowed.