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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord
Nimmo Smith Lord
Clarke Lord
Philip |
[2009] HCJAC 10Appeal No:
XC326/08
OPINION OF THE COURT delivered by LORD NIMMO
SMITH in CROWN APPEAL AGAINST
SENTENCE by HER MAJESTY'S ADVOCATE Appellant; against MUNRO & SONS ( Respondent: _______ |
Appellant:
Bain, Q.C. A.D.,:Crown Agent
Respondents: J. G. Thomson;
28 January 2009
Introduction
[1] The
Health and Safety at Work etc Act 1974 ("the 1974 Act") provides by section
3(1):
"It shall be the duty of
every employer to conduct his undertaking in such a way as to ensure, so far as
is reasonably practicable, that persons not in his employment who may be
affected thereby are not thereby exposed to risks to their health or safety."
Section 33(1) provides that it is an offence for
a person (a) to fail to discharge a duty to which he is subject by virtue of
section 3(1), among other provisions.
[2] The
respondents, Munro & Sons (
"(2) On 5 July 2006 at the A9 Inverness to
Scrabster Road at Tomich Junction, Invergordon, Easter Ross and at premises
occupied by you at the Deephaven Industrial Estate, Evanton, Easter Ross, you
MUNRO & SONS (HIGHLAND) LIMITED being an employer within the meaning of the
aftermentioned Act, did fail to conduct your undertaking in such a way as to
ensure, so far as was reasonably practicable, that persons not in your
employment, namely Julia MacKay, c/o Northern Constabulary, Dingwall, Christina
Fraser, formerly residing at Garstein, Arabella, by Tain, and members of the
public using said road at the time, who may have been affected thereby were not
exposed to risk to their health and safety and in particular;
(a) you did cause and
permit WALTER MACLENNAN, an employee of said company, to transport a load,
namely a Michigan L190 wheeled loader by means of a mechanically propelled
vehicle, namely an Articulated Unit and a Low Loader Trailer Combination,
registered number T373 KMS and did fail to provide said WALTER MACLENNAN
with sufficient and adequate load securing equipment, in particular sufficient
and adequate chains or lashings and fastenings, fail to ensure that the said
load was sufficiently secure and fail to ensure that the brakes of said load
were effective, in working order, and in operation;
(b) you did cause and
permit said WALTER MACLENNAN to load said mechanically propelled vehicle with a
load of 30130 kilograms, causing the gross weight of said mechanically propelled
vehicle and load to be 48350 kilograms, being a load in excess of its maximum
permissible gross weight of 44000 kilograms shown on the plate fitted in
accordance with provisions of the Road Vehicles (Construction and Use)
Regulations 1986;
whereby the said chains
broke and said load broke away from said mechanically propelled vehicle and
rolled into the path of motor vehicle registered number P678 JAS then being
driven by said Julia MacKay, whereby said Julia MacKay was severely injured and
said Christina Fraser, a passenger in said motor vehicle being driven by said
Julia MacKay, was so severely injured that she died: CONTRARY to the Health and
Safety at Work etc Act 1974, section 3(1) and section 33(1)(a)".
The Crown accepted pleas of not guilty by Munro and by
their employee Walter MacLennan to the remaining charges on the
indictment.
[3] After hearing counsel, the sentencing
judge imposed a fine of £3,750 on Munro, discounted by 25% from £5,000 to
reflect the plea of guilty and the stage at which it was tendered. The Crown have now appealed against this
sentence on the ground that it was unduly lenient. No exception is taken to the 25% discount, so
there is no need for us to set out the factors, principally the stage at which
an unequivocal intention to plead guilty in the terms finally accepted was
intimated to the Crown, which the sentencing judge took into account when
selecting it. The issue for us is
therefore whether in the whole circumstances the starting point of £5,000 can
be regarded as unduly lenient.
The facts
[4] The
sentencing judge was presented with an agreed narrative, on which his report to
this Court is based. Some additional
information was provided in the course of discussion before us. This allows us to give the following account.
[5] Munro
are a wholly owned subsidiary of William Munro Construction (Highland) Ltd
("Construction"). The directors of both
companies are members of the Munro family, principally William Munro and his
brother David, who are respectively managing director and transport director. The principal activity of Munro is that of
haulage and waste disposal contracting.
They operate from various premises on the Cromarty Firth, including
premises at Deephaven Industrial Estate, Evanton, and Kindeace Quarry.
[6] Umax
Limited ("Umax") are international pipeline fabricators. They also have a base at Deephaven Industrial
Estate and, as we understand it, are part of an international group of
companies.
[7] In
June 2006 Umax decided to sell a Michigan L190 wheeled loader ("the
[8] William
Munro, the managing director of Munro, expressed an interest in the purchase of
the
[9] Accordingly,
on
[10] In this
situation, the following features may be noted.
(1) As a result of the serious
defect in the parking brake, discussed below, the
[11] Walter MacLennan
then set off to drive the laden unit to the quarry. For most of his journey he travelled along
the A9 road, which is comparatively level, and then turned left onto an
unclassified public road leading from the A9 junction at Tomich to
Newmore. This road sloped slightly
uphill, at an angle of about five degrees.
[12] Meanwhile,
Christina Fraser and Julia McKay were travelling in
Julia McKay's Nissan Almera motor car along the A9. They both worked as beauty consultants,
latterly at Debenhams store in
[13] By this
time, the unit driven by Walter MacLennan was about 40 metres from the
junction. Because of the incline on the
road, the
Fraser was killed outright and Julia McKay,
remarkably, survived with injuries.
[14] The
agreed narrative included a victim impact statement. The emergency services attended soon after
the accident. Christina Fraser was
pronounced dead at the scene, having died of multiple injuries. She was 24 years
old at the time of her death. For nine
years before her death she was in a relationship with Garry Ross and since
January 2005 they had lived together at Garstein, Arabella, by Tain. They had been engaged for three years. Her fiancé chanced upon the scene of the
accident on his way to pick her up and realised that the car involved was the
one in which she had been travelling. He
was sent to wait for news at the hospital in
[15] Julia
McKay was cut free from the wreckage and taken to hospital, where she was found
to have suffered bruising and cuts and required surgery to repair
two fingers on her left hand. She
was in hospital for four days. Although she has recovered
from her physical injuries, she has been left with a weakness in her left hand
and scarring and has experienced psychological difficulties as a result of the
accident, with post traumatic stress, a psychological inability to drive and
extreme difficulty in travelling as a passenger. She is obtaining professional psychiatric
advice.
The offence
[16] It is
now necessary to consider in more detail the failures on the part of Munro
which caused the accident and thus constituted the offence. Obviously, steps should have been taken to
ensure that the
[17] According
to the agreed narrative:
"Expert opinion has been
sought on the manner of securing the load.
Remarkably there does not appear to be any compulsory training for lorry
drivers in this connection nor is a lorry driver expected to be familiar with
what appears to be the 'best practice' standard, ie. the Department of
Transport Code of Practice for Safety of Loads on Vehicles. Some general questions are asked apparently
as part of the HGV licence test and thereafter it seems to be a matter of
accumulated experience. ... The Code of Practice provides very clear
guidance as to how a vehicle of this type should be loaded and secured. It is clear that the chains selected should
have been of sufficient strength to restrain 100% of the weight of the vehicle
in any forward motion and 50% of the weight of the vehicle in any rearward or
sideways motion and should at least have been lashed at each of the four wheel
stations. The Code of Practice suggests
that no reliance should have been placed on the effectiveness of the parking
brake."
Angus Gillies, who attended the scene of the
accident, apparently remarked, "The chains broke when the lorry driver went up
the hill and the machine came off. These
old fucking chains are never checked."
It is clear that the chains used by Walter McLennan fell far short
of the guidance provided by the Code of Practice. It is not suggested that the chains would
have held if there had not been about four tonnes of water in the tyres of the
"The breaking load of the
chains is not something that Walter MacLennan would have been expected to know
but is information which his employer is expected to hold and could have
provided to him (together with additional chains) if requested. It is clear that inadequate plant, materials
and information was available to Walter MacLennan who had no information as to
the weight of the vehicle, and an inadequate number of appropriate and
sufficient weight bearing chains."
[18] Notwithstanding
all of this, counsel for Munro submitted to us that the main purpose of the
chains was principally to stop the
[19] The
parking brake was operated by a push/pull lever. When this was pulled, brake pads were applied
to a disc attached to the transmission of the
[20] Umax's
service records relating to the
The
appropriate level of fine
The cases
[21] The
relevant provisions of the Health & Safety at Work Etc Act 1974 have been
quoted above at paragraph [1]. Given
that Munro were prosecuted on indictment, the penalty to which they were
liable, in terms of Section 33(1A) of the Act, was a fine of unlimited
amount. That would have remained the
position if they had been prosecuted on indictment in the
[22] Although
there have of course been occasions - fortunately rare - in the Scottish courts
where the level of the appropriate fine for a contravention of the statutory
provisions causing death has had to be considered, most notably in HMA v Transco plc in August 2005, no case has led to a reported judgment
of this court in which the relevant considerations have been discussed. We now have that opportunity. This involves a consideration of the English
authorities.
[23] In R v F
Howe & Son (Engineers) Ltd [1999] 2 Cr. App. R. (S.) 37 the
Court of Appeal made some general observation about cases of this nature, with
particular regard to the gravity of the breach, aggravating features,
mitigating features and the policy underlying the legislation. Following this, in R v Friskies Petcare (UK) Ltd [2000] 2 Cr. App. R.
(S.) 401 the Court of Appeal recommended the use of documents listing in
writing not merely the facts of the case but also the aggravating features
relied on by the Crown and the mitigating features relied on by the
defence. Such documents have come to be
known in
[24] We do
not think it necessary to go further into the detail of those two cases, in
view of the decision of the Court of Appeal in R v Balfour Beatty Rail
Infrastructure Limited [2007] 1 Cr. App. R. (S.) 65, in which the
Court of Appeal, chaired by the Lord Chief Justice, Lord Phillips, set out
principles derived by the sentencing judge in that case from the judgment in Howe and other cases, which at
paragraph 23 they described as "a helpful summary of the guidance afforded
by the decided cases, which guidance we would endorse". These principles, so far as relevant for
present purposes, were stated at paragraph 22 to be as follows:
"(1) Failures
to fulfil the general duties imposed by sections such as, for example, section
3 of the 1974 Act are particularly serious, as such sections are the
foundations for protecting health and safety of the public.
(2)
Historically, fines for such offences, certainly those imposed by
magistrates, have been too low.
(3) It is not
possible to say that a fine should stand in any specific relationship with a
turnover or net profit of the defendant.
Each case must be dealt with according to its own circumstances.
(4) It may be
helpful to look at how far short the defendant fell of the appropriate
standard.
(5) Generally,
where death occurs in consequence of the breach, that is an aggravating
feature. To that proposition I would add
that by analogy with cases of causing death by dangerous driving, multiple
deaths must be regarded as more serious than single deaths, though not, of course,
standing in anything like an arithmetical relationship with them.
(6) A breach
with a view to profit seriously aggravates the offence.
(7) Also
relevant is or may be the degree of the risk and the extent of the danger,
specifically whether it is an isolated failure or one continued over a
period.
(8) The
defendant's resources and the effect of a fine on its business are
important. Any fine should reflect the
means of the offender, and the Court should consider the whole sum it is minded
to order the defendant to pay including any order for costs.
(9) Mitigation
will include (1) a prompt admission of responsibility and a timely plea of
guilty; (2) steps taken to remedy deficiencies drawn to a defendant's
attention; and (3) a good safety record.
(10) Above all,
the objective of the fine imposed should be to achieve a safe environment for
the public and bring that message home, not only to those who manage a
corporate defendant, but also to those who own it as shareholders. Later decisions have all drawn on and
confirmed the usefulness of Howe as
an authority and they have added the following further points of possible
application to this case.
(11) The stated
objective in Howe means that
consistency of fines between one case and another and proportionality between
the fine and the gravity of the offence may be difficult to achieve. Consistency may not, therefore, be a primary
aim of sentencing in this area of law. R v Jarvis
[2005] EWCA Crim 1409 paragraph 7.
(12) The court
can take a more serious view of the breaches where there is a 'significant
public element', particularly where the public has to trust a company entrusted
with work relating to their safety to carry that work out competently and
efficiently. The court can also take
into account in such cases the fact, if appropriate, that it was a matter of
good fortune that the risks, and presumably their consequences, did not turn
out worse than in the event they did. Jarvis, again, paragraph 11."
The thirteenth principle, which does not apply in the
present case, related to the position of a public body.
[25] In
later discussion the court said:
"42 Section 3 of the 1974 Act requires positive
steps to be taken by all concerned in the operation of the business of a company
to ensure that the company's activities involve the minimum risk, both to
employees and to third parties. Knowledge that breach of this duty can result
in a fine of sufficient size to impact on shareholders will provide a powerful
incentive for management to comply with this duty. This is not to say that the
fine must always be large enough to affect dividends or share price. But the
fine must reflect both the degree of fault and the consequences so as to raise
appropriate concern on the part of shareholders at what has occurred. Such an
approach will satisfy the requirement that the sentence should act as a
deterrent. It will also satisfy the requirement, which will rightly be
reflected by public opinion, that a company should be punished for culpable failure
to pay due regard for safety, and for the consequences of that failure.
43 A breach of the duty imposed by s. 3 of the
1974 Act may result from a systemic failure, which is attributable to the fault
of management. It may, however, be the result of negligence or inadvertence on
the part of an individual, which reflects no fault on the part of the
management or the system that they have put in place or the training that they
have provided. In such circumstances a deterrent sentence on the company is neither
appropriate nor possible. Where the consequences of an individual's shortcoming
have been serious, the fine should reflect this, but it should be smaller by an
order of magnitude than the fine for a breach of duty that consists of a
systemic failure."
[26] We find
these passages to be highly persuasive.
In our opinion, especially given that the 1974 Act is a
Other materials
[27] In addition to these
cases, our attention was drawn to two other documents from
[28] In the paper, at paragraphs 58 to 60, the Panel expressed the provisional view that annual turnover is the most appropriate measure of an organisation's ability to pay a fine, and thus the starting points and ranges proposed by them were expressed as percentages of annual turnover. Annual turnover was defined as "the aggregate of all sums of money received by an organisation during the course of its business .... over an annual period". The Panel's provisional starting point for an offence of corporate manslaughter committed by a first time offender pleading not guilty was a fine amounting to 5% of the offender's average annual turnover during the three years prior to sentencing. After taking into account any aggravating and/or mitigating factors, the court would then arrive at a fine which would normally fall within a range of 2.5 to 10% of average annual turnover.
[29] Of more relevance to our consideration, the Panel's provisional starting point for an offence under the 1974 Act involving death was a fine amounting to 2.5% of average annual turnover during the three years prior to the offence. The fine would normally fall within a range of 1 to 7.5% of average annual turnover. We were not shown any guidelines issued following the consultation process, so the consultation paper must be regarded as of some, but limited, assistance for present purposes.
Munro's financial position
[30] This brings us to the
financial position of Munro. The
information provided to the sentencing judge, and to us, is less than might
have been hoped for. Where a company has
been convicted of an offence such as the present, or indeed any other offence
in respect of which its financial position would be relevant in determining the
level of fine, it is for the company to place before the court sufficiently
detailed information about its financial position to enable the court to see
the complete picture without having to resort to speculation. In addition to the lodging of all relevant
documents, it may in some cases be thought appropriate to lead the evidence of an
accountant. Though this was not done in
the present case, it would have been appropriate, since all that was placed
before the sentencing judge was the directors' report and financial statements,
in relation to Munro, for the years ended
[31] In addition, we were
shown the abbreviated accounts for the year ended
The sentencing judge's
approach
[32] In his
report to this Court, the sentencing judge states:
"Having regard to all the foregoing factors I formed
the view that this was a serious offence.
There had clearly been failures by the appellant company in the
operation of their undertaking in relation to the transport of the
(We do not know why the sentencing judge refers to
Munro as the appellants, rather than the respondents, throughout his report.) The sentencing judge also notes that no
challenge was made to the submission made to him by counsel for Munro that the
drop in profitability between 2005 and 2006 was largely attributable to an
increase in fuel costs. He concludes:
"The grounds of appeal refer to 'An apparent drop in
profitability....'. Candidly I do not understand
the use of the word 'apparent'. I also
note that it is said that the net worth of the company was about £347,000. That statement is factually correct. In candour I did not take it into account in
considering sentence. In my respectful
view it is of little assistance in calculating the appropriate level of
fine. The figure is no more than a
statement of the value of the company on a notional breakup and I would not
consider it relevant to the question of calculation of a fine."
[33] It is apparent from these passages that the
sentencing judge was not invited to consider the decisions of the Court of
Appeal in Howe and Balfour Beatty. It is also apparent that, as he expressly
states, his "principal consideration was the ability of [Munro] to meet a
financial penalty", and that in assessing that ability he proceeded on the
basis of the net profit for the year ended
Discussion
[34] In our
view the sentencing judge fell into error in approaching the question of the
determination of the appropriate fine in this manner. He should have taken into account the gravity
of the offence, and any aggravating or mitigating features, along with the
ability of Munro to pay a fine. He
should, above all, have borne in mind the policy underlying section 3 of the
1974 Act and the public interest in the requirement that Munro should be
punished for its culpable failure to pay due regard for safety, and for the
consequences of that failure: Balfour Beatty at
paragraph 42.
[35] Munro
were under a clear statutory duty to protect the health and safety of the
public. They were responsible for
transporting the
[36] While,
in the circumstances, little turns on the fact that its actual train weight was
about four tonnes in excess of the maximum permissible gross weight of the loaded
tractor and trailer unit, Munro failed to comply with their statutory duty
because the chains were inadequate and the handbrake of the Michigan did not
work. If, as counsel submitted, it was
not intended that the chains alone should be sufficient to prevent the Michigan
from rolling off the low loader trailer, that is not only incompatible with the
terms of Munro's plea of guilty, but it also means that they were relying on
the handbrake alone for that purpose. No
doubt Umax should have told them that problems with the handbrake had been
reported. No doubt the test drive, for
the reasons explained above, did not disclose that the handbrake was
defective. But if the intention was to
rely on the handbrake, and that alone, to prevent the
[37] The
driver, Walter MacLennan, is not to be blamed. So far as individuals are concerned, the
fault lay higher up in the company.
William Munro and Andrew Gillies were in a position to take the
appropriate decision at a managerial level.
In the context of the operations of a small family company, we regard
this as a systemic failure. The
consequences of Munro's corporate error of judgment were catastrophic, and need
to be brought home to Munro's directors, Construction as their shareholders,
and the Munro family members who ultimately own them.
[38] On the
other hand, we accept that Munro have no previous convictions and that, particularly
since the
[39] As has
been seen, it is not easy to form a complete picture of Munro's financial
position. Net profit is not the only
relevant factor in assessing the level of fine which will serve the purposes of
retribution and deterrence, and thus serve as punishment without bringing a
company to its knees. We accept that,
although their turnover is substantial, they are not a particularly profitable
company and are very much exposed to such factors as increases in fuel prices
as well as fluctuations in the economy.
[40] Taking
a broad view of the matter, in light of the passages from Balfour Beatty quoted above and the other considerations we have
discussed, and making due allowance for the timing of the plea of guilty, we
have come to the view that the sentence imposed by the sentencing judge was far
too low and took inadequate account of the nature of the offence itself and the
need for appropriate punishment in the public interest. In our view an appropriate starting point,
taking account of all the relevant circumstances, would have been one of £40,000,
which would then have been discounted by 25%, to reflect the plea of guilty and
its timing, resulting in a fine of £30,000.
Result
[41] We
shall accordingly quash the fine imposed by the sentencing judge and substitute
a fine of £30,000.