Health and safety: R v F. Howe & Son (Engineers) Ltd (6 November 1998) Court of Appeal

The case involved the appeal by F. Howe & Son (Engineers) Ltd against a fine of £48,000 for four separate breaches of the Health and Safety at Work Act 1974 and related legislation. The Court of Appeal allowed the appeal and substituted a fine of £15,000. The court also took the opportunity to detail some of the factors which should be taken into account by judges and magistrates when deciding the level of fine to impose for such health and safety offences. This case is therefore significant in its attempt to deal with the increasing criticism of courts for the inadequacy of fines for health and safety offences and to reduce the uncertainty surrounding the basis on which fines are assessed. Similar criticism has been made of the courts in relation to fine levels for offences relating to the environment. The judge stated it was necessary to look at how far below the appropriate standard the employer had fallen in failing to satisfy the test of what was reasonably practicable. The judge pointed out that the size of the company or its financial strength were irrelevant when looking at the standard of care which should be reached. The same standard applied across the board. Relevant factors regarding the level of fine did include the degree of risk, the extent of the breach and the company's ability to pay the fine and the effect on it's business. If the company was attempting to claim that it did not have the financial resources to pay the fine, it should produce before the court supporting accounts and other financial information. Failure to do so would result in the court fairly concluding that the company had the requisite resources to satisfy the penalty imposed. If the accounts were produced late, an adjournment for sentencing may be appropriate. The judge highlighted certain features, which if present, would be aggravating features of the offence and may increase the penalty imposed. Examples given of these are as follows: death of the employee; a deliberate breach with a view to profit from failure to take necessary steps; the running of a risk in order to save money and failure to take note of previous warnings. In addition, the judge pointed out various mitigating factors which the court would acknowledge such as a good health and safety record, a guilty plea and prompt steps taken to alleviate any breach. In relation to costs, it was noted by the judge that if the defendant appeared able to meet the whole of the prosecution's costs, there was no reason why the court should not make such an award. (Independent Law Reports, 13 November 1996)