Recently at Basildon Crown Court, S&S Quality Building Contractors Ltd was fined £600,000 and ordered to pay costs of £36,894 after pleading guilty to breaching s 3(1) of the Health and Safety at Work Act. In addition, S&S’s director, Shlomo Pines, received a community order to complete 100 hours of unpaid work and was fined £4,200 after pleading guilty to contravening s 37 of the Health and Safety at Work Act.
The prosecution came about following a proactive inspection by the Health and Safety Executive (HSE) that investigated health and safety failings at a construction site at Regent House in Brentwood, Essex, after a concern was raised that people were sleeping on site.
With assistance from Essex Fire & Rescue Service, the investigation identified failings in fire management at the site, which created risks to workers and members of the public visiting show flats outside of business hours. The HSE found the environment at Regent House was poorly managed and the construction work was being carried out in an unsafe manner which could have resulted in a fire.
Evidence gathered during the investigation indicated that S&S company director Shlomo Pines regularly attended the Regent House site and failed to implement improvements from previous HSE interventions. In addition to this, S&S Quality Building Contractors had previously been subject to interventions by the regulator after fire risks had been identified across a number of sites over several years.
Courtesy of the HSE, IOSH magazine has been provided with a copy of the sentencing remarks made by Recorder Cuthbert at Basildon Crown Court. This is our summary of the steps that the court had to take in determining sentencing.
Regina (HSE) v S&S Quality Building Contractors Limited
Step 1: Determining the offence category
The first step in the process is to determine the offence category. This involves assessing (a) culpability and (b) harm. The court must then consider two further factors in the round. These are (c) whether the offence exposed a number of workers or members of the public to a risk of harm and (d) whether the offence was a significant cause of actual harm. If one or both of (c) and (d) applies, the court must consider either moving up a harm category or substantially moving up the category range at Step 2. The court should not move up a harm category if actual harm was caused but to a lesser degree than the harm that was risked.
A – Culpability
The court ruled that this case fell within high culpability because a number of the factors that are set out in the Guideline as being present in a high culpability case were present in this case. The factors that were present are: (1) failing to put in place measures that are recognised standards in the industry; (2) failing to make appropriate changes following prior incidents exposing risks to health and safety; (3) allowing breaches to subsist over a long period of time; and (4) serious and/or systemic failure within the organisation to address risks to health and safety.
B – Harm
In terms of harm, the court has to consider two elements: (a) the seriousness of the harm risked, which can be at level A, level B, or level C, and (b) the likelihood of that harm arising, high, medium or low. The Guideline emphasises that health and safety offences are concerned with failure to manage risks to health and safety and do not require proof that the offence caused any harm. The offence is in creating the risk of harm.
In this case, following expert reports, the court ruled that the seriousness of the harm risked was Level A since whenever there is a fire there is always the risk of death or physical or mental impairment resulting in lifelong dependency on third party care for basic needs. The harm risked was particularly high given the cumulation of risks noted on 29 January 2018: (1) the lack of any consideration of risks relating to fire at all; (2) the presence of combustible material being around the site which meant that there was fuel available for a fire; (3) the presence of particular forms of ignition namely smokers and workers engaging in ‘hot work’ without any precautions having been put in place to minimise the risk of ignition; (4) the absence of smoke detectors to detect potential fire; (5) the lack of compartmentalisation allowing any fire that did start to spread widely and swiftly; (6) a lack of defined escape routes for workers/sales staff and (7) a lack of up-to-date fire-fighting equipment.
However, the court found that the likelihood of the harm actually occurring was low.
C – Other factors
The court also has to decide if the offence exposed a number of workers or members of the public to a risk of harm. With 39 workers on site at the time, Recorder Cuthbert did find that a number of people were put at risk of harm and it was sufficient to move the offence up from category 3 harm to category 2 harm. However, the offence was not a significant cause of actual harm. Therefore, in conclusion, the offence was in high culpability harm category 2.
Step 2: The starting point and category range
The starting point and category range in the Guideline is different depending on whether the Defendant is a Very Large Organisation, a Large Organisation, with a turnover or equivalent of £50 million and over; a Medium Organisation, with a turnover or equivalent of between £10 million and £50 million; a Small Organisation (£2 - £10 million); or a Micro Organisation (not more than £2 million). As S&S’s turnover in 2019 was £12 million, Recorder Cuthbert was satisfied that S&S was a Medium Organisation
The appropriate starting point and category range for S&S, therefore, was that which applies to Medium Organisations in high culpability harm category 2. The starting point is £450,000 and the category range is from £220,000 to £1.2 million.
Factors which affect the starting point
S&S had no previous convictions, however it did have a very poor record with HSE. That had already been taken that into consideration at the culpability stage and Recorder Cuthbert did not include that as an aggravating factor. There were no other aggravating factors.
Following consideration of mitigating factors, such as S&S’s lack of previous convictions, the appropriate level of fine was determined to be £800,000.
Steps 3 and 4
At Steps 3 and 4, the sentencing body must step back, review and, if necessary, adjust the initial fine reached at Step 2 to ensure that it fulfils the general principles of sentencing for health and safety offences. Recorder Cuthbert found no reason to adjust the fine.
Step 5
Step 5 did not apply.
Step 6: Credit for guilty plea
S&S was entitled to a 25% reduction in the fine as credit for its guilty plea at the Plea and Trial Preparation Hearing stage.
Conclusion on level of fine
After applying the 25% discount for the guilty plea, the fine was reduced from £800,000 to £600,000.
Regina (HSE) v Mr Shlomo Pines
Step 1: Determining the offence category
Recorder Cuthbert felt Mr Pines’s case fell within high culpability and the seriousness of harm risked was at level A. This meant that the offence is in high culpability harm category 3. As in the case against S&S, factor (c) – the offence exposed a number of workers or members of the public to a risk of harm – was present and Recorder Cuthbert again raised the category to 2 for the same reasons as before.
Step 2: The starting point and category range
The appropriate starting point and category range for Mr Pines given the guidelines of high culpability harm category 2 is a starting point of 26 weeks custody and the category range is from Band F fine or high-level community order to one year’s custody.
Factors which affect the starting point
There were no aggravating factors present. However, in mitigation, Mr Pines had no previous convictions and there was evidence that Mr Pines had taken some steps to remedy issues. When these were taken into account, Recorder Cuthbert found it appropriate to reduced 26 weeks’ custody to a high-level community order coupled with a financial penalty, namely a Band F fine which, with disposal income of £800 per week, made a fine of £4800.
Steps 3, 4 and 5
No effect on the fine.
Step 6: Credit for guilty plea
Recorder Cuthbert felt Mr Pines was entitled to a 12.5% reduction in the sentence as credit for his guilty plea at the Pre-Trial Review between the Plea and Trial Preparation Hearing and the trial date itself. Applying the 12.5% discount for the guilty plea, the sentence was 12 months community order with 100 hours of unpaid work and a fine of £4,200.
