An Analysis of the Sentencing Process in HSE v Martin Baker Aircraft Ltd

Following on from Ben Rich’s article on Whirlpool, Tom Day analyses the sentencing process in HSE v Martin Baker Aircraft Ltd

On 23 February 2018, following a two day sentencing hearing, Mrs Justice Carr imposed on Martin Baker Aircraft Limited (MBAL) a fine of £1.1 million for one offence contrary to section 3 of the Health and Safety at Work Act 1974. The proceedings arose out of the tragic death of Flight Lieutenant Sean Cunningham, a Red Arrows pilot, in 2011 when he was inadvertently ejected from his jet while stationary and the parachute failed to deploy.

In summary the facts were:

• The failure of the parachute to deploy after the inadvertent ejection (a recognised risk) was the result of RAF staff over tightening a certain nut during ordinary maintenance.
• That over tightening meant that a shackle which had to be released for the parachute to deploy was pinched and would only be released by the force created by ejection at a speed of 50 knots or more.
• MBAL had been made aware of the risk of this interference with the shackle as a result of over tightening from as early as 1990.
• MBAL had introduced written warnings in the manuals provided to a number of countries but not to the RAF.
• By this breach MBAL exposed each pilot or passenger in such an ejector seat to the material risk that an ejection when stationary or at low speed might result in the failure of the main parachute to deploy.

There was substantial dispute between the prosecution and the defence regarding various aspects that went to culpability. Carr J determined that the resolution of those disputed issues would not materially affect the sentence.

The basis of plea entered on behalf of MBAL (agreed by the prosecution) indicated that the culpability was medium and at least lower than the very top of medium culpability. The risk of harm was a low likelihood of death given that it would only occur in stationary or low speed circumstances. The final harm category, bearing in mind the resultant death, was 2.

Carr J concluded that although the breach persisted over a long period of time (potentially indicating high culpability) MBAL could be placed within the medium category and in the middle of that range.

In terms of harm, the harm risked was death (level A) and, based on the fact that MoD estimates placed the risk of inadvertent ejection as occurring once in every 115 years, Carr J concluded that there was a low likelihood of such harm hence a categorisation of harm category 3.

She then found that a significant number of pilots were exposed to the risk of harm and the offence was a significant cause of actual harm. In those circumstances, the guidelines enjoin the sentencing judge to consider moving up a category or moving up within the category.

Carr J stated that death, without more, justified moving the harm category to category 2. In this case she concluded that the final harm category, taking into account the numbers exposed, significant cause of harm and resulting death, should be towards the upper end of 2.

MBAL’s turnover was approximately £220 million, over 4 times the £50 million threshold for a large organization, with profit before taxation in the region of £50 million. Carr J treated MBAL as a large organisation and, whilst not moving up a category, made an upwards adjustment to reflect the significantly high level of turnover.

The starting point was £1.45 million on the basis of an initial starting point of £600,000 and a range of £300,000 to £1.5 million. That figure was reduced to £1.25 million to reflect the available mitigation. No further adjustment was required to reflect the financial circumstances of the company. Carr J. explicitly stated that she was entitled to consider the company’s wider financial position, in particular the circumstances of MBAL’s holding company.

Finally, Carr J gave 12% credit for a guilty plea indicated a week before the trial and only finally resolved on the day of trial. MBAL invited greater credit on the basis that the prosecution had narrowed the issues as preparation progressed. Carr J rejected that argument and, more significantly, identified two factors justifying the refusal to give any greater credit, namely it had always been open to the defence to seek clarification of the prosecution case and to plead guilty on the basis it ultimately did.

The total fine was therefore £1.1 million.

A number of points for further consideration emerge from this judgment, particularly in the wake of Whirlpool.

 A death will justify moving up a harm category. The combination, however, of death, numbers exposed to risk and the offence being a significant cause of actual harm will not necessarily result in moving up two categories.

• Arguments for greater credit than would ordinarily be given for the stage at which the guilty plea was entered will be critically analysed by the courts. Delays in entering guilty pleas will be costly.
• The wider financial reality for companies can and will be explored by the sentencing court. This is particularly relevant where there is a holding company or a complicated corporate family.
• MBAL’s turnover was not sufficient to justify moving up another harm category notwithstanding substantial profits and Directors’ emoluments. Again, no useful guidance is provided as to when an organisation becomes “very large.”

Tom Day

Tom advises and acts in all matters involving alleged breaches of Health & Safety and Environmental Regulations. Tom regularly lectures on the topic of sentencing in Health & Safety cases. He is a member of the Health and Safety Lawyers Association.