No: 05/2304/A2 
Neutral Citation Number: [2005] EWCA Crim 2687
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 13 October 2005
 
B E F O R E:

LORD JUSTICE LATHAM 

MR JUSTICE NEWMAN 
 
MR JUSTICE BEAN 

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R E G I N A 

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ENVIRONMENTAL TYRE DISPOSALS LTD
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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MR SELVA RAMASAMY appeared on behalf of the APPLICANT
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J U D G M E N T 

1.	LORD JUSTICE LATHAM:  On 11th November 2004 in the City of London Magistrates' Court the applicants pleaded guilty and was committed to the Crown Court for sentence for an offence of failing to discharge a duty as an employer under section 2(1) of the Health and Safety at Work Act 1974.  At the Central Criminal Court on 30th March 2005 His Honour Judge Stephens QC ordered the applicants to pay a fine of £70,000, £4,996 compensation and £14,991.50 towards the prosecution costs.  The company renews its application for leave to appeal against sentence after refusal by the single judge.
2.	The circumstances in which the offence occurred were as follows.  The applicant company had premises in north London which consisted of offices and an enclosed yard of about three acres.  To that yard lorries would come carrying used tyres for scrap.  The actual process of shredding the tyres for the purposes of later disposal was carried out by another company, Midco Waste Management Ltd (which was called during the proceedings "Midco"), who were themselves defendants and received the same penalty.
3.	The position was that on the premises there was a shredder which was operated by Midco.  The deceased was one of the applicant's employees on the site.  He was the supervisor of those employed by the applicants to examine the tyres and to store the tyres prior to their being shredded.  
4.	For the purposes of carrying out the shredding, amongst other equipment, Midco had obtained a loader.  The loader was used to assist in moving the tyres from where they were stored to the shredder.  None of the applicants' employees had had any training or even instruction in the use of that loader.
5.	On the day in question, which was Saturday 30th June 2001, only one employee from Midco came to the site to work.  As a result, the applicants made the deceased and one other employee available to Midco to assist in the shredding process.  In order to move the tyres to the shredder the deceased decided to use the loader and, tragically, whilst he was using it, it overturned, trapping and killing him.  It was that accident which formed the basis of the prosecution.
6.	As far as Midco was concerned, the allegations that were made against them were that they had, according to the evidence, asked or instructed the deceased to use the loader in the course of carrying out his work, knowing that he had not had any training or at least making no enquiry as to whether he was capable of using the loader.  The requirement for training for using such a machine was a well-known requirement within the industry; and there is no doubt that the deceased was killed in the course of carrying out operations on behalf of Midco.   
7.	As far as the applicants were concerned, they were the employers of the deceased.  They knew that he was carrying out operations on Midco's behalf; and there is no doubt that the deceased had in the past used the loader when he should not have done.  The allegation against the applicants, accordingly, was a failure to supervise and instruct the deceased appropriately.  The conclusion was that both the companies were accordingly to blame; and the judge considered that they could properly be treated as equally blameworthy.  It was in these circumstances that he imposed the fines that he did.
8.	In mitigation it should be said that neither company had any previous convictions for any health and safety offences.  Both pleaded guilty, and both had cooperated with the Health and Safety Executive after the tragic accident and had put their respective houses in order.
9.	On behalf of the applicants Mr Ramasamy has, in his advice and his submissions to us today, said all that could possibly be said on behalf of the applicants.  He submits to us that essentially, for two reasons, the judge's approach to sentencing was wrong.  First, as far as the respective responsibilities of the applicants and Midco are concerned, he should have treated Midco as being more to blame, on the basis that theirs was a positive act which resulted in the deceased driving the loader, namely the instruction that he could use it for the purposes of moving the tyres, whereas the applicants' failure was what might be described as a negative failure, in other words they failed to do that which they should have done, and that that should not have been treated as in the same category as the positive failure of Midco.
10.	Secondly, he submits that the fine was simply too great for two reasons.  First, he submits that it is out of line with the fines imposed on other companies in other cases; and he has referred us to a number of cases which he submits are of sufficient similarity to provide some guidance to this court and has referred us in particular to cases which follow the case of R v F Howe and Sons (Engineers) Ltd [1999] 2 Cr App R (S) 37, where this court indicated that previous sentences would appear to have been inadequate.  Second, he submits that the fine was too great because of the applicants' financial position.
11.	Dealing with the first main ground upon which he criticises the judge's sentencing approach, we do not accept that the applicants should be treated any differently from Midco.  It may be that it was Midco who effectively created the situation in which the deceased was put at risk by the use of the loader, but it was the applicant's responsibility as employers to ensure his safety and, in that context, to have taken steps to oversee precisely what work he was doing and how he was doing it when he was effectively seconded to Midco.  Had they done so, they would have appreciated that he had in the past driven the loader and taken appropriate steps to ensure that he did not do so again.  We consider that their position as employers justified the judge taking the view that he did as to their relative blameworthiness in this case.
12.	Turning then to the level of fine, there is nothing in the material with which we have been provided which suggests to us that £70,000 was other than an appropriate figure to take in the circumstances of this case, as the level of fine appropriate to mark the seriousness of the offence and its consequences.  It is very difficult to extrapolate from case to case any scale which can assist courts, and it is therefore a matter of assessment by the judge as to where he places the seriousness of this case in the spectrum which is identified by other cases.  We do not consider that the judge went wrong in placing this one in a serious category, requiring a substantial fine.  It may indeed be that some would consider the fine of £70,000 for the accident which caused the death of the deceased a figure which is by no means a heavy penalty for the company to bear for the failure to look after its employees as it should.
13.	As far as the company's financial position is concerned, it seems to us that, although there is no doubt that it was a smaller company than Midco by reference to its accounts, the fact remains that it is a company which had a turnover in excess of £2 million per year.  It was by no means a small business in that sense.  The fact that it may not be as profitable at the moment as its shareholders and those running it may like, and indeed from the material that we have it is clearly not making substantial profits, nonetheless the figures do not suggest that there are any special circumstances in their case which could justify the judge departing from the figure which he had deemed appropriate in the first instance to reflect the defaults on their part.  We are not, in those circumstances, satisfied that there is any prospect of this court interfering with the sentence.  We consider it was a proper sentence in the circumstances, and the application for leave to appeal is accordingly refused.