Electricity North West Ltd [2018] EWCA Crim 1944; [2018] 4 W.L.R. 148, CA.
Electricity North West Ltd was convicted of contravening regulation 4(1) of the Work at Height Regulations 2005 (count 2). They were acquitted of breaching regulation 3(1) of the Management of Health & Safety at Work Regulations 1999 (count 1) and also regulation 2(1) of the Health & Safety at Work Act 1974 (count 3). They were fined £900,000 and appealed against conviction and sentence.
The grounds of appeal against conviction were that in light of the acquittals the only factual basis for the conviction could be one that did not give rise to any material risk, and also that the conviction was logically inconsistent with the acquittals.
The background was that a linesman employed by the company fell from height while clearing ivy from a vertical wooden pole, and suffered fatal injuries. He was held in place by a work positioning belt, designed to allow him to lean back and work at height but not designed to arrest a fall; he was not wearing a fall-arrest lanyard. As he cleared the vegetation with a handsaw, he cut through the belt and fell. The work ought to have been carried out from a ladder or Mobile Elevated Work Platform (MEWP), the use of a positioning belt and a fall-arrest lanyard was a third and least appropriate choice but one open to the linesmen. A generic risk assessment identified that a MEWP should be used if possible. On the day in question, the MEWP was being used elsewhere, and neither man working on the pole had their fall arrest lanyards with them.
The prosecution case on count 2 was that the work had not been properly planned with no documented or other safe system of work for the task, it wasn’t appropriately supervised or carried out safely, nor was there a proper selection of work equipment. The defence case was that risk assessments were suitable and sufficient.
The Judge set out the basis on which he considered the jury had reached their verdict and on which he would sentence (see para 26). He said that there was no planning to ensure that the tools required to do the work at height were “readily available.”
On appeal, it was argued that the offences on all counts “bled into each other”, they covered the same period of time, same work, risk and employees. The verdicts were consistent with a proper risk assessment and the conclusion that there was no foreseeable risk from the work that was carried out. It was submitted that the mischief in count 2 was covered by counts 1 and 3. The prosecution submitted that the material duty under regulation 4(1) properly to plan, was a strict duty. The MEWP should have been planned to be available for the two linesmen.
The Court of Appeal held “In our view, the fact that a risk is not reasonably foreseeable is not an answer to a charge of breaching regulation 4 of WAHR by a failure of proper planning…In the present case a MEWP was required for the work of clearing ivy from the post and, at the crucial time, one was not readily available: in other words, no plan had been made for it to be there. The fact that, on the jury’s verdict, this did not create a foreseeable risk was not an answer to the charge count 2, although it was material to sentence.”
The Court was also satisfied that there was a proper evidential basis for the conviction on count 2: namely that the planning was deficient in that there was no MEWP readily available for the entirety of the work.
The appeal against conviction was dismissed.
The appeal against sentence was on the ground it was manifestly excessive in the circumstances and as the sentence was on the basis that the company had carried out a sufficient risk assessment, the Judge ought not to have attempted to apply the Sentencing Guidelines.
The Court of Appeal found that the Judge was right to sentence by reference to the Guidelines on Health and Safety Offences but that the right sentence, in this case, was a fine of £135,000, a further adjustment upward to reflect turnover should not be made on the facts of this case.