No: 200001071/X4
Neutral Citation Number: [2000] EWCA Crim 97
IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
The Strand
London WC2

Date: Monday 22nd May 2000
B E F O R E :

THE VICE PRESIDENT
(LORD JUSTICE ROSE)

MR JUSTICE JOWITT

and

MRS JUSTICE HALLETT

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R E G I N A

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CARDIFF CITY TRANSPORT SERVICES

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 421  4040   Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
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MR B THOROGOOD appeared on behalf of the Appellant
MR P MARSHALL appeared on behalf of the Crown

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JUDGMENT

1.	MRS JUSTICE HALLETT:  On 21st December 1999 at Cardiff Magistrates’ Court the appellant company, Cardiff City Transport Limited, pleaded guilty and were committed to the Crown Court for sentence. On 28th January 2000, in the Crown Court at Cardiff, before Mr Recorder Elias QC and two justices, the company was sentenced for the offence of breaching a general duty to an employee at work, contrary to section 2 of the Health and Safety at Work Act, a £75,000 fine and ordered to pay £9,611.25 prosecution costs; both sums to be paid within 3 months.
2.	The company appeals against sentence by leave of the Single Judge.
3.	On Sunday 25th January 1998, at the company’s bus depot in Cardiff, two of the company’s garage employees, a Mr Thorne and Mr Price, were engaged in moving buses around the depot in readiness for the next day’s business. Mr Price parked a bus in an allotted space and he was described as running off the bus that he had just parked without looking round. Mr Thorne was driving a bus at the regulation 10 miles per hour, alongside and parallel to Mr Price’s bus and had no opportunity to avoid Mr Price. He ran in front of the bus and was knocked to the ground. He struck his head  on the ground and died shortly afterwards. At an inquest a verdict of accidental death was reached.
4.	Health and Safety investigators were called in and they concluded, although the company had completed a very wide range of method and risk assessments, there had been no specific risk assessment addressed to pedestrian and vehicle movements within the garage. If such an assessment had been carried out it would have revealed three significant failings:  firstly, the one way system for moving vehicles around the garage was not enforced at all times. Sundays, for example, were recognised by all concerned as an exception. The bus that struck Mr Price on this Sunday was travelling the wrong way down the roadway in the garage contrary to the one way system. Secondly, there was a need for high visibility clothing for all those employees who were routinely moving vehicles around or working in the depot and no steps had been taken to ensure all employees had been issued with such clothing. Thirdly, prior to July 1996, the speed limit at the depot was 5 miles per hour inside the garage and 10 miles per hour outside. This was changed to 10 miles per hour inside in July 1996. Having given the matter some thought the appellant company had decided that the enforcement of 5 miles per hour speed limit was too difficult. It was the  inspector’s view, however, that a speed limit of 5 miles per hour should have been retained and the effect of the increased speed limit had not been considered properly before it was altered.
5.	Mr Marshall, at the court below and in written submissions before us, on behalf of the Health and Safety Executive, accepted that there was no causal connection between the tragic death of Mr Price and the appellant company’s admitted breach of section 2(1) of the Act. Mr Price’s death, however, did highlight the unsafe system of work, which increased the risk of a collision between a pedestrian employee and a bus, just the kind of collision which did in fact occur. It is not suggested, therefore, that had there been a lower speed limit, had the one way system been enforced or had Mr Price been wearing a brightly coloured jacket, that this accident would not have occurred.
6.	Mr Thorogood, on behalf of the appellant company, in his extremely persuasive and succinct submissions has referred this Court to the decision in R v F Howe & Sons [1999] 2 Cr App R(S) 37. He argues that none of the aggravating features referred to therein exist in the present case and most, if not all, the mitigating features do exist in the present case. He distinguishes the authority of Hall and Co Ltd [1999] 1 Cr App R(S)  306 on the basis that, in that case, the company had a previous conviction for breach of Health and Safety Regulations; the court found that a very serious risk of a very serious accident had been presented by the company’s failings; in that case there was the death of an employee as a result of those failings, and the company itself was in a very healthy financial situation. He submits, in the circumstances here of the offender and the offence, the fine and costs together were manifestly excessive.
7.	It is accepted that the appellant company had a good safety record and no previous convictions. Before the accident, we are told, the company had a well regarded Health and Safety programme in existence and was considered to have a good attitude to Health and Safety issues. Any breach of the Act or the regulations was an oversight and in no way deliberate.
8.	Far from ignoring any previous warnings, the company in this case had always co‑operated with the Health and Safety Inspectorate with their staff and with their insurers in an attempt to ensure the best possible system of work.
9.	Mr Thorogood refers us to the fact that millions of times each year buses have been moved on the premises, and there had never been a previous collision  between a bus and a pedestrian. It has to be said, of course, that the company’s admitted failings meant that this was an accident waiting to happen.
10.	The basis of the guilty plea was, however, limited to the failing to make this particular and important risk assessment and therefore failing to identify the need for high visibility clothing and the failure to enforce the one way system. Mr Thorogood has also referred this Court to the company’s financial position, and we have before us an up‑to‑date letter from the company’s accountants indicating a post tax profit of between about £500,000 and £300,000 over the last 3 years. This year the profit is expected to be the region £560,000. There is no question that any of the company’s failings had anything to do with attempts by the company to increase their profitability by cutting corners and therefore costs.
11.	Finally and most importantly, Mr Thorogood relies very heavily upon the fact that the Crown concede that the fatal accident was not caused by the appellant company’s want of care, and should not therefore be linked, as he submits it has been, to the offence.
12.	These cases are always extremely difficult ones to decide. On the one hand, it is essential that employers are made acutely aware of the need to ensure the highest  possible safety standards and a safe environment for all their workers. Risks cannot be people taken with people’s lives.
13.	On the other hand, we have here, we accept, an appellant company which has acted very responsibly since the accident and has done everything in its power to prevent such an incident occurring again. We unhesitatingly accept the company’s expression of sincere regret at Mr Price’s death. No doubt his death came as a terrible shock to all concerned. We hope the company’s attitude has gone some way to alleviating the distress and grief of his family and friends.
14.	We therefore are persuaded that this company has consistently shown a responsible attitude to Health and Safety issues and this was an unfortunate but not deliberate failing on its part. No one has apparently previously suggested to the company that high visibility clothing should be worn and the company had sought the advice of experts when it came to the question of its speed limit.
15.	Having balanced all the matters very carefully and having assessed the means of the appellant company, we have decided that, in all the circumstances, the fine was excessive. We accept the submissions of Mr Thorogood that it is inappropriate in this case to link  the death of Mr Price to the company’s failings in the way it appears to have been done by the size of the fine. Had Mr Price’s death been caused by the company’s breach, a fine considerably more than £75,000 may well have been appropriate. In this case we are satisfied that the appropriate level of fine is would be appropriate to reduce the fine is £40,000. To that extent this appeal will be allowed. The costs will remain as they are.
16.	MR THOROGOOD:  May I invite the Court to consider a defendant’s cost order for these proceedings, but remain as they are below?
17.	THE VICE PRESIDENT:  Yes.
18.	MR THOROGOOD:  I am very grateful.