SPR Trailer Services Ltd [2018] EWCA Crim 2668

**R v SPR Trailer Services Ltd [2018] EWCA Crim 2668** concerned an appeal against sentence by a company convicted under section 2 and section 33(1)(a) of the Health and Safety at Work etc Act 1974 following the workplace death of one of its employees. The Court of Appeal (Lindblom LJ, McGowan J and Cheema‑Grubb J) reduced the period for payment of the fine but otherwise dismissed the appeal.

SPR Trailer Services Ltd pleaded guilty at the magistrates’ court and was committed for sentence to Ipswich Crown Court, where His Honour Judge Levett imposed a fine of £120,000 payable at £5,000 per month within two years. A victim surcharge of £120 was also ordered. The company was represented on appeal by Ms M A F Bennett; the Crown by Ms E Lambert.

The offence arose from the death of Mr Douglas Skinner on 23 January 2015. Mr Skinner was a 67‑year‑old experienced trailer fitter who had worked for the appellant for over ten years. On 22 January 2015 the appellant’s operations manager, Mr Rivers, had asked Mr Skinner and a colleague, Mr Arbon, to remove metal signposts twelve feet high standing in a triangular formation at the entrance to the company’s site adjacent to a busy public road. The task constituted general maintenance rather than Mr Skinner’s usual work. Neither man was directed as to how the work should be accomplished. They used a mobile elevating work platform known as a scissor lift, which they parked between two of the signposts. No barriers, cones or signs were used to protect them, though Mr Arbon acted as a banksman whenever lorries passed, despite the fact that the scissor lift did not obstruct the access road and a five mile‑per‑hour speed limit applied in that area.

The following day Mr Rivers asked Mr Skinner to refit the signs. He was again left to get on with it, this time assisted by another employee, Mr Atkins. Mr Skinner experienced difficulty positioning the signs correctly and decided to move the scissor lift across the front of the signposts. In that new position the lift was angled and its left rear encroached into the access road, obstructing part of it. At approximately 2.30 pm, while Mr Skinner was in the elevated cage and Mr Atkins stood at its rear, a trailer leaving the site struck the scissor lift’s work platform. The driver, Mr Woodcock (also an employee of the appellant), had paused briefly at crawling speed to check his exit was clear and had spoken to Mr Skinner. As he executed a 90‑degree turn crossing both lanes of the highway in his Leyland tractor and 45‑foot trailer, the rear offside corner of the trailer caught the rear nearside corner of the work platform. The scissor lift tipped over onto its left side, ejecting Mr Skinner, who struck the tarmac of the public road and died from his injuries despite resuscitation attempts by colleagues and paramedics.

An investigation by the Health and Safety Executive found no mechanical fault in the scissor lift but established that it was vulnerable to toppling if subjected to side loading. British Standard 8460 and other published guidance available at the relevant time made clear that a small impact on such a platform could have disproportionate effects and that the operating area should be coned off. Mr Skinner and his colleagues had received scissor lift training in August 2014 which included instruction on segregation. The investigation concluded that although the scissor lift was the safest method for working at the required height and only trained staff were permitted to use it, no risk assessment had been completed for the particular task. This resulted in an unsafe system of work exposing employees to risks that had not been properly considered. The appellant accepted that there had been no written system of work in place and that employees had been expected to apply their training, particularly concerning segregation. The investigation found that despite substantial heavy‑goods vehicle movements at concentrated periods in the day, no supervision was provided to the workers, no method was suggested for dealing with those movements in conjunction with the scissor lift, and the workers themselves made the decisions on using and locating the equipment. Although the appellant stated that periodic supervision had been provided and that there was insufficient time to intervene between the lift’s repositioning and the accident, it was clear that the training did not extend to planning and managing such tasks, leading employees to adopt a system exposing them to risk. The investigation concluded that it would have been reasonably practicable for the appellant to carry out a risk assessment and prepare a method statement, and to ensure that employees consulted the training manual.

The sentencing judge observed that Mr Skinner’s death was avoidable. Even a basic generic risk assessment had been omitted. The risk from the repositioned scissor lift was patently obvious and the company had failed to take basic measures to provide a safe system of work. Something as simple as instructing the employee to leave the platform and move the lift when a lorry was turning left would have eliminated the risk entirely; barrier beacons would have reduced though not eliminated it. The company had responded positively to the investigation’s findings by purchasing cordoning equipment, providing further training on safe working methods and risk assessments, and increasing supervision. The judge was satisfied that the appellant was now highly vigilant to this form of risk.

At sentencing the judge had viewed CCTV footage and examined experts’ reports and five publications highlighting the dangers of scissor lift use. He applied the Sentencing Council’s definitive guideline for Health and Safety offences. At step one he assessed culpability as medium, agreeing with both prosecution and defence that the offender had fallen short of the appropriate standard in a manner between high and low culpability and that systems were in place but not sufficiently adhered to or implemented. As to harm, the guideline required consideration of the risk of harm rather than actual harm caused. The judge found that the seriousness of the harm risked was the highest (death) and the likelihood was medium rather than high or low, placing the case provisionally in harm category 2. The guideline then required him to consider whether the offence exposed a number of workers or members of the public to risk or was a significant cause of actual harm. If either applied, the provisional harm category could be adjusted upwards or a substantial upward move within the category range could be justified at step two. It was agreed that the offence was a significant cause of the actual harm. The judge also concluded that the first factor applied because the risk exposed four other employees who worked on the task over the two days and who were at risk by virtue of the absence of a risk assessment and control measures, though he acknowledged their exposure was not identical to Mr Skinner’s. Nonetheless, the judge declined to move into the next harm category (category 1) but decided it was necessary to move substantially up the range within category 2, noting that there was sufficient scope within that range as it overlapped with category 1.

At step two the judge had to consider the financial size and health of the company. The appellant was a small business established in 1997 engaged in trailer repair and servicing with 36 employees across three sites. In 2016 it returned a profit of approximately £114,000 before tax and £85,000 net from a turnover of around £2.3 million. There was no dispute that the appellant was a small business. The guideline table for enterprises with turnover between £2 million and £10 million placed the starting point for medium culpability harm category 2 at £160,000 within a range of £100,000 to £500,000. Applying that category the judge reached a provisional fine of £210,000. He found no aggravating features. By way of mitigation he took account of the company’s clean record and otherwise good history of health and safety, the delay in bringing the matter to resolution due to a complex investigation, the fact that the appellant had admitted liability at the first reasonable opportunity, and that it had acted swiftly and effectively to remedy its failures. He was not persuaded that co‑operation with the investigation warranted additional allowance. The mitigation justified a reduction of £30,000 in the provisional fine. At step three the judge stood back and reviewed the proposed fine. He considered the guideline’s requirement that the fine should be sufficiently substantial to have a real economic impact bringing home to management and shareholders the need to comply with health and safety legislation. A full one‑third discount was applied at step six for the guilty plea, producing a final fine of £120,000. As to time to pay, the judge concluded that two years, whilst having inevitable impact on the extent to which profits could be drawn, would not cause disproportionate hardship.

On appeal Ms Bennett advanced four grounds. First, she submitted that the judge’s provisional sentence before credit for mitigation and guilty plea was significantly too high a starting point. Secondly, insufficient reduction was applied for mitigation. Thirdly, the fine was too high within the offence category because the company’s turnover had only just brought it into that category. Fourthly, allowing just two years to pay the fine was unfair and could put the company into terminal difficulty. She relied on up‑to‑date information from the appellant’s accountant.

The Court of Appeal (Cheema‑Grubb J giving judgment) held that the judge’s approach was impeccable. The provisional sentence of £210,000 was within the category range of medium culpability harm category 2 for small businesses, albeit very close to the top of that range. The judge was aware of the crossover into category 1 (where the starting point would have been £160,000 within a range of £100,000 to £600,000) and was entitled to move up within the category range at step two. There was no error in principle. The guideline deliberately states that if such a move is to be made it can be a substantial one. The court rejected the submission that because the business was at the lower end of the small business class in terms of turnover it was impermissible for the judge to move so far up the category range. Whilst the court recognised that a substantial portion of the appellant’s profit would be taken up with paying the fine, there was no evidence that the business would become insolvent and its outgoings would be met on the information provided. The court was not persuaded that the reduction made for mitigating features was insufficient. In a case where a business had committed such a clear breach of the law with devastating consequences, however unblemished its previous health and safety record, the guideline enabled a fine which sharply underlined the importance of health and safety for small businesses. The judge had properly given a full one‑third discount for the early guilty plea and the fine imposed properly reflected all relevant factors whilst allowing fairly for the size of the enterprise.

However, the court held that Ms Bennett’s final submissions on the time to pay had touched more promising territory. The court had seen the appellant’s accounts for the years leading up to the accident and a letter from the appellant’s accountant setting out reasons why future turnover was likely to be below that previously achieved. The court recognised that it had been held in previous judgments that an appropriate length of time should be provided to enable a business to trade satisfactorily in the round while paying the fine. The court was prepared to restructure the impact of the sentence by allowing more time to pay. The rate of payment was reduced to £30,000 per year and the period to complete payment was extended to four years.

In short, the Court of Appeal affirmed the fine of £120,000 imposed by the Crown Court for a fatal health and safety breach arising from the absence of a risk assessment and safe system of work but extended the time for payment from two years to four years in order to enable the company to trade satisfactorily while meeting the penalty.