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Court of Appeal ruling published on refusal to cut £300k health and safety fine for university

The reasons why the Court of Appeal refused to cut a £300,000 fine imposed on a London university for a health and safety offence have become clear this week with the publication of its ruling on Bailii.

The background to the case of University College London, R. v [2018] EWCA Crim 835 was that on 14 June 2017 in the Crown Court at Southwark, UCL pleaded guilty to an offence of exposing another to a risk to health and safety, contrary to sections 3(1) and 33(1)(a) of the Health and Safety at Work Etc Act 1974.

On 3 July 2017 His Honour Judge Tomlinson sentenced the university to the £300,000 fine and ordered it to pay just under £15,000 by way of prosecution costs.

The incident affected a masters student whose research involved the use of a bespoke piece of equipment called the lithium evaporator or lithotron.

On 30 June 2014 she was tightening the bolts on the sample chamber of the lithotron when the viewing port shattered. She suffered serious injuries including lost partial vision in her left eye. She also suffered post-traumatic stress disorder for six months after the accident and continuing anxiety thereafter.

UCL subsequently admitted three specific breaches of health and safety:

  1. A failure properly to calculate and keep under review the design of the lithotron following a modification to introduce the nitrogen supply in order to ensure that the machine was strong enough to withstand any potential overpressure.
  2. A failure to carry out a risk assessment on the machine following the addition of the nitrogen line.
  3. A failure to ensure adequate control measures to meet the risk of over-pressurisation.

Before the Court of Appeal counsel for UCL sought amongst other things to argue that:

  • The judge was entitled to have regard to the resources of UCL, but the court should also take into account the limited resources of the London Centre of Nanotechnology (LCN), where the accident occurred.
  • The judge was entitled to find that this was an offence involving medium culpability and level 3 harm [under the relevant sentencing guideline], but the fine was manifestly excessive in amount. In particular, counsel argued that the judge erred in fixing too high a starting point on the facts of the case: the relevant guideline starting point being £300,000, there was no warrant for the judge to have increased that figure to as high as £500,000 or more.
  • The judge did not appear to have taken into account either at all or at any rate sufficiently the very much smaller turnover of the LCN as a subsidiary of UCL. It was also an error on the part of one small subsidiary and not a university-wide or extensive failing.
  • The judge made insufficient reduction for various mitigating factors. These included that in a number of ways UCL went well beyond what could reasonably be expected of them in quickly settling all civil liability, in taking a solicitous approach to the welfare of the student and in handing over the report of their internal investigation to the Health and Safety Executive rather than seeking to claim privilege for it.
  • UCL might have a turnover of more than £1bn per annum but this stemmed from the receipt of grants from various sources. Its position was very far removed from a commercial organisation with a similar turnover.

Counsel submitted that as a result the fine should properly have been in the range £150,000 to £200,000 and not the £300,000 imposed.

The Criminal Division of the Court of Appeal rejected UCL’s appeal.

Lord Justice Holroyde said the judge had been entitled to treat UCL as a large rather than very large organisation, and this favoured the university. “It would have been open to him at step 2 to look simply at turnover and to treat the appellant as a very large organisation, with an appropriate adjustment to be made later in the sentencing process.”

Lord Justice Holroyde said the relevant table in the guideline, as identified by HHJ Tomlinson, showed that the starting point for sentence after a trial was a fine of £300,000 and the range of penalty was from £130,000 to £750,000.

Counsel for UCL had sought to argue that consideration of LCN's turnover should have caused the judge to go towards the bottom end of that range.

“We are unable to accept that submission,” said Lord Justice Holroyde. “The judge, as we have indicated, had already stepped back from placing the appellant into the category of ‘very large organisation’ and on that ground going outside the table relevant to large organisations. Moreover, as we have already indicated, the judge was required at step 1 to consider moving up a harm category or substantially moving up within the category range because of the serious harm caused. We have no doubt that the learned judge was fully entitled to conclude that after trial a sentence substantially above the guideline starting point would have been appropriate.”

The Court of Appeal could not accept the submission that HHJ Tomlinson had failed to take into account mitigating factors or give them sufficient weight, Lord Justice Holroyde said. “It must be remembered that within the appropriate range a fine of up to £750,000 could have been imposed after a trial. In our judgment, the seriousness of the harm caused to Miss Hicks merited a sentence high in that range before making reductions first to reflect the mitigation and then the guilty plea.”

Lord Justice Holroyde continued: “It seems to us that the learned judge had already taken into account the financial realities of the position of UCL, and the fact that fault lay with LCN rather than with the university as a whole, in his decision to pass a sentence within the category range appropriate to a large organisation in a case of medium culpability and harm category 3. As we have indicated, had he not taken into account those factors he would have been entitled to move to a substantially higher starting point for sentence than he did.”

The reduction made by HHJ Tomlinson to reflect UCL’s charitable status was within the range properly open to him, Lord Justice Holroyde said. Similarly a reduction of 25% as credit for a guilty plea was “again well within the range properly open to the judge”.

Lord Justice Holroyde said: “It follows that in our judgment the learned judge applied the sentencing guideline in a way which does not give rise to any successful ground of appeal….. we conclude that the fine imposed was not one which was manifestly excessive. Indeed, we would wish to emphasise that in our judgment a fine at the level for which [counsel for UCL] has contended would have fallen well short of being adequate to meet the seriousness of this case.”

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