Emma Evans

October 2016 recently saw the fine of £1.8million imposed on C.RO Ports London in January 2016 for health & safety breaches resulting in a broken arm, dramatically reduced to £500,000.

At first glance, this may have provided a glimmer of hope to other defendant organisations about the prospects of appealing substantial fines. However, the case is not overly telling because it was not approached under the new definitive Sentencing Guideline (in force as of 1 February 2016). The reason behind the reduction was simply the Court of Appeal's ability to reduce any sentence where it is considered "manifestly excessive."

This was further considered in Watling Tyre Services, which in June 2016 received a fine of £1m for its failures resulting in a workplace fatality. The Court applied the relevant range of the Guideline to impose the fine. On appeal, it was again argued that the fine was "manifestly excessive" due to the delay in bringing the case to court – more than 10 years since the incident. This argument was rejected.

Delay could properly be used as mitigation, but the Court maintained that the Guideline should apply to all offences sentenced post 1 February 2016 and noted that fines were already on the increase even before the Guideline took effect.

Most recently, ConocoPhillips' fine of £3m was deemed to be proportionate and upheld for offences where no actual harm was caused. Sentencing had originally started in January 2016, but was adjourned to February due to a lack of court time. For this reason only, the Judge did not apply the Guideline. On appeal, the Court considered that ordinarily the Guideline would apply and attract a higher starting point. In addition, it also said where turnover largely exceeds the threshold for 'large' organisations, "it would be necessary to move well beyond that range to achieve a proportionate sentence.”

In conclusion, the increased level for health & safety fines is likely to continue and such fines are so far being upheld by the Court of Appeal. It is yet to be seen how future appeals, focused more on category of harm or level of culpability, will be approached.

Emma Evans, Associate at Pinsent Masons LLP