Squibb Group Limited [2019] EWCA Crim 227
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The Court of Appeal (Criminal Division), comprising Lord Justice Leggatt, Mrs Justice Cutts and His Honour Judge Wall QC, allowed in part an appeal by Squibb Group Ltd against conviction and sentence for a health and safety offence.
Squibb Group Ltd had been convicted at Southwark Crown Court before His Honour Judge Beddoe on count one of an indictment charging a breach of section 2(1) of the Health and Safety at Work Act 1974, namely a failure to ensure, so far as was reasonably practicable, the health, safety and welfare of its employees. Squibb was acquitted of count two, which alleged a breach of section 3(1) concerning persons not in its employment. The sentence imposed for the section 2(1) offence was a fine of £400,000. Squibb appealed against conviction on three grounds and, in the alternative, against sentence.
The offence arose from Squibb’s involvement as a demolition sub-contractor during refurbishment works at Warwick School South in Waltham Forest. An asbestos survey conducted by Redhill Analysts in July 2011 had identified some asbestos, which was removed before the first phase of refurbishment. Squibb was engaged to carry out demolition work in the second phase. It conducted demolition work during the Easter school holidays in April 2012 and resumed work on 23 July 2012. On 24 July a Squibb employee inspecting an area above a suspended ceiling discovered a large clump of asbestos. Work ceased immediately and a fresh survey confirmed widespread asbestos sprayed on ceilings throughout the school, showing that previously demolished areas had contained asbestos.
The main contractor, Balfour Beatty, and the project manager, NPS London Ltd, pleaded guilty to offences under the 1974 Act. Squibb contested the charges. At trial it was not disputed that asbestos had been disturbed during the demolition work and that Squibb’s employees and others, including school staff and children, were exposed to a risk of inhaling asbestos fibres which carried a long-term risk of fatal disease. The issue was whether Squibb had done all that was reasonably practicable to protect those exposed. Under section 33(1)(a) of the 1974 Act Squibb bore the burden of proving on the balance of probability that it had done so.
The prosecution case was that Squibb should have obtained and carefully studied the Redhill report, and would or should have realised from caveats in the report that the survey was inadequate and that a further, more thorough survey was required before demolition began. Squibb argued that it had reasonably relied on assurances from Balfour Beatty that all asbestos had been identified and removed. It also contended, relying on expert evidence, that the Redhill report would reasonably have been understood as confirming that all relevant areas had been surveyed. A particular dispute concerned the interpretation of a table on page 17 listing areas to which access was required; the prosecution said these were areas not accessed, whereas Squibb contended the report indicated these areas had been surveyed.
The judge directed the jury to give separate consideration to each count, stating that although the verdicts might be the same it did not necessarily follow that they would be. He set out three questions for each count: whether Squibb was an employer (accepted); whether employees or others were exposed to risks of asbestos; and whether Squibb had proved it did all that was reasonably practicable. On count one the jury convicted; on count two it acquitted.
On appeal, Squibb’s first ground was that the verdicts were inconsistent and therefore rendered the conviction unsafe. Relying on the test in R v Durante (1972) 56 Cr App R 708 and R v Electricity North West Ltd [2018] EWCA Crim 1944, Squibb contended that there was no rational basis for differentiating between the two counts, since the evidence showed persons exposed comprised both employees and non-employees, and the prosecution case and Squibb’s defence drew no distinction in the steps required to protect each category. Lord Justice Leggatt rejected that submission. The court held that the jury was entitled to find that Squibb’s employees were exposed to much higher levels of asbestos than anyone else, since they performed the demolition and rubble clearance when exposure was at its highest. Although Squibb took precautions to reduce risks to others, such as scheduling work during school holidays, shutting off access and using plastic sheeting to contain dust, the court found that the jury was entitled to conclude that the risks to non-employees were substantially lower. Applying the judge’s direction that what is reasonably practicable involves balancing the degree of risk against the steps necessary to avert it, the jury was entitled to consider that the greater degree of risk to Squibb’s employees required correspondingly more onerous measures. There was therefore a rational basis for acquitting on count two while convicting on count one.
Squibb’s second ground was that the judge should have directed the jury that it was not open to them to return different verdicts on the two counts. The court held that this ground added nothing to the first. Because the verdicts were not inconsistent, the judge was right to tell the jury to give separate consideration to each count and to direct them that it did not necessarily follow that their verdicts would be the same.
The third ground, which Mr Stephen Hockman QC for Squibb put at the forefront of his submissions, was that the judge should have directed the jury to consider separately the April and July phases of Squibb’s work and to find Squibb guilty only if it unanimously concluded that Squibb had failed to comply with its duty in relation to one or both phases. Relying on authority such as R v Beckingham [2006] EWCA Crim 773, Squibb argued that there were material differences between the two phases: the April works involved the first floor whereas the July works involved the second and ground floors, separate risk assessments and method statements were prepared, different employees were involved, and actual demolition had not commenced in July before work ceased upon discovery of asbestos. The court rejected this submission. It held that in the way the prosecution put its case the differences were not material. The prosecution case was straightforward: that before commencing any demolition work Squibb should have obtained and read the Redhill report and realised that a proper assessment had not been made. Once demolition work began creating a risk, the breach occurred and continued. There was no material distinction drawn in the defence case either. The principal elements, namely reliance on Balfour Beatty’s assurances and the interpretation of the Redhill report, applied equally to both phases. Giving a direction of the kind sought would have caused unnecessary complication by introducing a distinction bearing no relationship to the realities of the case.
The court concluded that none of the grounds of appeal against conviction was well founded and that the conviction was not unsafe.
Turning to sentence, the court considered the appeal under the Definitive Guideline for Health and Safety Offences. The judge had assessed Squibb’s culpability as high, finding that the company, working in a field where it would frequently encounter asbestos risk, should have had a system to ensure asbestos survey reports were obtained, read and acted upon. Instead it had relied on false and lazy assumptions made on the basis of word of mouth. The judge had assessed the harm risked as level A seriousness (potentially fatal disease) with a medium likelihood, placing the offence in harm category two. For a medium-sized organisation with high culpability in harm category two the starting point was £450,000. The judge adjusted downwards to £400,000 to reflect the absence of previous convictions and improved procedures, though he took into account what he considered a poor attitude reflected in the case advanced at trial.
Mr Watson QC for Squibb challenged the assessments of both culpability and harm. On culpability, he submitted that the judge failed to take proper account of the jury’s verdict on count two and the background that employees were properly trained, other contractors had worked at the site without alarm, Balfour Beatty had given assurances, and save for failing to review the Redhill report Squibb had prepared suitable risk assessments and method statements. The court rejected these arguments. Lord Justice Leggatt held that the judge was entitled to find that Squibb failed to have a proper system in place and that its failings reflected a lax approach by senior managers subsisting over a significant period. Dealing with a specialist organisation that could routinely expect to encounter asbestos risks, the judge was entitled to conclude that Squibb had fallen far short of the appropriate standard and that there had been a serious and systemic failure, justifying a high culpability assessment.
On harm, however, the court found error. It held that there was no proper basis for the judge’s conclusion that there was a medium likelihood of harm arising. The likelihood that exposure to asbestos at a particular level for a particular period will cause fatal disease is a scientific question which should be answered with the assistance of scientific evidence. Squibb’s independent expert had produced a report estimating that if 100,000 people were exposed similarly to Squibb’s employees, about ninety deaths would result. This estimated risk was extremely small compared to other risks such as smoking or working in construction generally. The prosecution adduced no expert evidence to challenge or provide an alternative estimate. Although any such estimate is inherently subject to a wide margin of error, the court held that the rational approach is to rely on the best available evidence. The judge gave no reason for disregarding or disagreeing with the expert evidence and was wrong to do so. The only reasonable conclusion on the available evidence was that the likelihood of harm was low.
On that basis the offence fell in harm category three, for which the starting point for high culpability by a medium-sized organisation was £210,000. Making a broadly similar downwards adjustment of approximately ten per cent to that made by the judge, the court concluded that an appropriate sentence was a fine of £190,000. The court declined to interfere with the judge’s order that Squibb pay £175,000 towards prosecution costs, as no error of principle was suggested. The court varied the sentence by substituting a fine of £190,000 for the fine imposed by the judge.
In short, the Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence to the extent of reducing the fine from £400,000 to £190,000, principally because the judge had wrongly assessed the likelihood of harm as medium when the expert evidence supported only a finding of low likelihood.