Environment Law Bulletin - Institute of Environmental Management ...

Health and safety – finesYorkshire Sheeting & Insulation Services Ltd(the defendant) was sub-contracted to carryout roofing works at commercial premises.In turn, the company engaged a number ofself-employed workers, including one manwho fell through a roof light and wasfatally injured. Yorkshire Sheeting &Insulation and the main contractor (the codefendant)pleaded guilty to failing toensure the safety of persons not in theirdirect employment, an offence undersection 3(1) of the Health and Safety atWork etc. Act 1974. In his sentencingremarks, the judge commented that thevictim was an employee of the defendantand that the company, as employer, boreprimary responsibility for his safety: had itbeen a civil case, the relative moral culpabilitywould have been apportioned as 90%to the defendant and 10% to the codefendant.A fine of £100,000 wasimposed on Yorkshire Sheeting &Insulation, with £8,950 costs, whilst the codefendantwas fined £10,000 andsignificantly lower costs. Yorkshire Sheeting& Insulation appealed against this sentence,arguing that the judge’s approach had beenwrong: the victim was not actually anemployee, some factual errors had beenmade and a precise percentage approach torelative culpability should not have beenadopted. The appeal was successful. TheCourt of Appeal held that the judge haderred in his sentencing by making factualerrors and that his approach masked thetrue nature of the sentencing exercise. Toomuch emphasis had been placed on theapportionment of overall liability betweenthe two parties and not enough onassessing the defendant’s degree of culpabilityand criminality in respect of theoffence and the failure to take steps toensure so far as is reasonable practicablethe safety of the roof workers (followingthe guidelines in R v F Howe & Son(Engineers Ltd) [1999] 2 All ER 249). Settinga tariff for health and safety cases was notpossible as each case must be decided onits own merits. In this case, a substantialfine was required but the £100,000 fineimposed was excessive. Taking into accountthe defendant’s culpability and mitigation,an appropriate fine was in the region of£60,000, an amount that would bereduced to reflect the costs order that wasdetermined in relation to the proportion ofthe original fines. Yorkshire Sheeting &Insulation’s fine was quashed and a newfine of £55,000 imposed.(R v Yorkshire Sheeting & Insulation Ltd, [2003] EWCACrim 458, 26 February 2003)HedgerowsUnder The Hedgerows Regulations 1997,prior notice of the removal of certain types“The Court of Appeal held that the judge had erredin his sentencing by making factual errors and thathis approach masked the true nature of thesentencing exercise.”of hedgerows must be given to a localauthority, subject to specific exemptions,including the proper management of ahedgerow. A decision must be reached bythe local authority within a prescribedperiod on whether to allow the removal orto issue a hedgerow retention notice. It isan offence to fail to serve a hedgerowremoval notice. In this case, Mr Lloyd notifiedConwy County Borough Council thathe proposed to remove 100 metres ofhedgerow but before the period prescribedfor the Council to reach its decision hadelapsed, the hedgerow was removed. In thesubsequent prosecution, Mr Lloyd arguedthat the work carried out had not in factrequired notification because the removalwas necessary ‘for the proper managementof the hedgerow’ (regulation 6(1)(j)).Evidence was accepted by the justices thatthe hedgerow was worthless anddangerous and that its removal was necessaryfor proper management. Mr Lloyd wasacquitted and the Council appealed,arguing that allowing the complete removalof a hedgerow to come within permittedworks under regulation 6(1)(j) wouldprovide a mechanism for the Regulations tobe circumvented. The High Court wasrequired, inter alia, to decide whether the49Environment Law BulletinApril 2003