Report on Mandatory Sentences - Law Reform Commission

of the person who must pay it. In this case, the Court noted that the somewhat unusual approach had
been taken of stating that the company could pay the fine (it was not going to drive it out of business or
anything of that sort) without giving any indication of the level of business which the company conducted.
The information which the Court had was the same as the trial judge, namely that it was a medium to
large company and that at the time of the fatality it was conducting the building of 90 houses at the
building site. The Court concluded that the company “was a substantial, relatively complex and profitable
enterprise.”
1.80 The Court of Criminal Appeal then went on to consider the detailed principles it should apply. It
approved of the list of aggravating and mitigating factors set out by the English Court of Appeal in R v F
Howe & Son (Engineers) Ltd, 157 to be taken into account in considering the level of fines to be imposed in
prosecutions under the equivalent British Health and Safety at Work Act 1974. 158 The aggravating factors
included: death resulting from a breach of the Act or Regulations; failure to heed warnings; and risks run
specifically to save money. 159 The mitigating factors included: prompt admission of responsibility and a
timely plea of guilty; steps to remedy the deficiencies; and a good safety record. 160
1.81 The Court in Roseberry also quoted the following comment of the English Court of Appeal in the
Howe case: 161
“Next it is often a matter of chance that death or serious injury results from even a serious
breach. Generally where death is the consequence of a criminal act it is regarded as an
aggravating feature of the offence, the penalty should reflect public disquiet at the unnecessary
loss of life.” 162
1.82 The Court in the Roseberry case commented that what had occurred at the building site
“undoubtedly was an unnecessary loss of life.” The Court also rejected the suggestion that the company
could in any substantial way mitigate its liability by saying, in effect, “[w]ell the sub-contractor and not
myself and not my company, was directly in charge of digging the trench where the fatality occurred.” On
this aspect, the Court concluded that it was “perfectly plain… that control of the site had been retained by
Roseberry Construction Ltd.” The Court added that its failure to have a Safety Statement and the other
failures significantly contributed to what occurred; if the Safety Statement had been prepared, the risk
would have been formally considered and no doubt something done about it. The Court added:
“It was the failure of any party to take the simple remedial measures that gave rise to the
substantial legal and moral guilt which must be regarded as attaching in the circumstances of this
case.” 163
1.83 On this basis, the Court concluded that there had been no error in the fine which had been
imposed in the Circuit Criminal Court and that, since the defendant was a successful company, the
penalty was not excessive in the circumstances. A significant feature of the decision in the Roseberry
case was the reference to the specific aggravating and mitigating factors identified in the English Howe
case.
1.84 Similarly, in The People (DPP) v Loving, 164 a child pornography case, the Court of Criminal
Appeal referred approvingly to the categorisation of child pornography by the English Court of Appeal in R
157
158
159
160
161
162
163
164
R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249.
The comparable legislation in Northern Ireland is the Health and Safety at Work (Northern Ireland) Order
1978.
The People (DPP) v Roseberry Construction Ltd and McIntyre [2003] 4 IR 338 at 340.
Ibid.
Ibid.
R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249 at 254.
The People (DPP) v Roseberry Construction Ltd and McIntyre [2003] 4 IR 338 at 342.
The People (DPP) v Loving [2006] 3 IR 355.
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