The conduct of the injured employee and strict liability are generally irrelevant to sentence: Regina v Nestle UK Ltd [2021] EWCA Crim 1681, [2022] 4 W.L.R. 3
Nestle, a very large organisation with a turnover of £1.6 billion, pleaded guilty to one count of failing to prevent access to dangerous parts of machinery, contrary to regulation 11 of the Provision and Use of Work Equipment Regulations 1998 (‘PUWER’) and was sentenced to a fine of £640,000. Permission to appeal against the size of the fine was refused by the single judge and Nestle renewed its application to the full court.
The Facts
In February 2016, an experienced technical operator, ‘J’, suffered a significant injury whilst working at Nestle’s factory in Halifax. There had been a problem with the operation of a conveyor belt on a machine that produced After Eight Mints, which kept slipping. J was crouched at the side of the machine, observing the conveyor belt. There was no guard at that location. J was holding an emery cloth in his right hand. He said the cloth got dragged into the roller and it took his arm with it. He was trapped by the rollers until he was eventually released by paramedics.
J suffered a fracture of his right ulna and radius which were reduced with pins and plates. He was discharged from hospital after three days and was away from work for four months. By the time of the application, he continued to suffer residual weakness in his arm which was also heavily scarred.
The original indictment contained one count alleging a breach of the general duty set out in section 2(1) of the Health and Safety at Work Act Etc 1974. Nestle sought to stay the original proceedings as an abuse of process on the basis of delay (of some three to four years). Before the application had been dealt with, the prosecution served an amended indictment which added the PUWER count. Nestle did not indicate what plea it might enter to that count if the indictment was amended and pursued the application for a stay, which was dismissed. Shortly afterwards, Nestle indicated its consent to the amendment and that it would plead guilty to the offence. The matter was listed on what would have been the first day of the trial, and the plea to the PUWER count was entered.
The Sentencing Hearing
The judge followed the Sentencing Council’s Definitive Guideline: ‘Health and Safety Offences, Corporate Manslaughter and Food Safety Offences and Hygiene Offences’. The judge determined that this was a case of medium culpability. The parties were agreed this was a case of level B harm. The judge found that the likelihood of harm was medium. The relevant harm category was Harm Category 3. Further, he found that two additional factors were in play: the number of workers exposed to the risk and the fact that the offence was a significant cause of harm. Accordingly, he was required to consider moving up a category or substantially moving up within the category range.
The starting point for a large organisation (with a turnover of £50 million and over) is £300,000 with a range of £130, 000 to £750,000. The judge started from £300,000 and moved up to £500,000 to reflect the two additional factors, namely numbers exposed to the risk and significant cause of harm.
He then further increased the starting point from £500,000 to £1 million to reflect (i) the sheer size of Nestle’s turnover, £1.6 billion (i.e. more than 30 times the £50 million threshold) and (ii) its previous conviction for a similar offence, namely a failure to guard, which resulted in a fatal accident.
The judge then reduced that amount by £200,000 to reflect the mitigating factors, including co-operation with the investigation and response to the accident. He then made a further reduction of 20% to reflect the guilty plea that reduced the fine imposed to £640,000.
The grounds of appeal
Ground 1 arose from the fact that the judge appeared to resolve a factual dispute over the contribution J made to his own misfortune, without hearing any formal evidence, which was then compounded by the judge’s decision to apply an uplift in respect of actual harm. Nestle’s case was that J was not simply observing the rollers in action but was attempting to clean the rollers with an emery cloth. It was this which caused him to be exposed to the moving parts.
The relevant part of the sentencing guideline is on page 5:
Consider whether the offender’s breach was a significant cause of actual harm and the extent to which other factors contributed to the harm caused. Actions of victims are unlikely to be considered contributory events for sentencing purposes. Offenders are required to protect workers or others who may be neglectful of their own safety in a way which is reasonably foreseeable. (The underlining is my emphasis).
The court rejected this ground, finding that the judge was quite entitled to uplift for actual harm. First, they agreed with the judge that it was irrelevant for this part of the sentencing exercise whether J was merely observing the operation of the machine or was attempting to clean the roller. In either case, it was the failure to guard the open parts of the machinery that was a significant cause of harm. But for that failure, the injury would not have been sustained. That was true whatever he was doing.
Second, they rejected the submission that what J was doing was relevant to the issue of reasonable foreseeability, finding that it was based upon a misreading of the guideline. “The reference to “reasonably foreseeable” is not a reference to the accident or culpability of the employee … it is simply confirming that the conduct of the employee will generally be irrelevant to the sentencing exercise because it is reasonably foreseeable that the employee will be neglectful of his or her own safety.”
In any event, since the offence exposed a number of workers to the risk of harm, the judge had been entitled to make the uplift.
Ground 2 concerned the amount of credit for the plea. It was rejected having regard to the particular chronology of the case and nothing of general application arises.
Ground 3 was that strict liability offences, such as reg 11 PUWER, should attract a lesser fine than those imposed for breaches of the general duties under the 1974 Act. The court expressed the view that introducing into a sentencing exercise questions of strict liability or concepts of foreseeability is both unnecessary and undesirable. The guideline, which makes no reference to them at all, “applies equally to offences charged under section 2 and under section 33 of the 1974 Act without any attempt at distinction.”
Nonetheless, the court left open the opportunity to develop this submission in other limited cases, depending on their facts, by stating: “… to the extent that, in any given case, there is a differential to be made for sentencing purposes between strict liability and other offences, this would be relevant on any consideration of culpability”.
Key takeaways:
- This is yet another case in which the court of appeal has stated that, save in exceptional circumstances, the sentencing judge should not have any regard to questions of blame or fault on the part of an employee.
- The sense of achievement defence practitioners experience when negotiations with the HSE result in a plea to a strict liability offence, in return for them not pursuing a HSWA offence, may be short-lived. It is certainly not safe to advise clients to expect a lesser sentence when pleading to strict liability offences, unless it can be shown to be capable of reducing culpability.
- It is noteworthy that no criticism was made of the doubling of the starting point from £500,000 to £1 million to reflect the high turnover and previous conviction. Indeed, an even higher uplift might well have been justified.
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