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The use of joint experts in criminal proceedings involving the Health and Safety Executive helped Irwin Mitchell secure a better outcome for a business involved in an enormous fire.

The Incident

The recyclers ‘G’ suffered the blaze at its premises when an explosion occurred inside a machine that had been supplied by ‘P’. The machine was used to shred aerosol cans, paint tins, drums and similar containers. It was alleged that the machine did not have adequate ventilation.

Investigation and Prosecution

The consequent investigation by the Health and Safety Executive saw both companies prosecuted and fined for safety failures. On 28 July 2011, the parties appeared before His Honour Judge Teague QC at Chester Crown Court for sentence. Dan Stowers of Irwin Mitchell acted for G.

G was alleged to have breached their general duties to ensure the health and safety of its employees by undertaking inadequate risk assessments when the ventilation problems had arisen and failing to take reasonable action to prevent the fire spread. G pleaded guilty to an offence under section 2 of the Health and Safety at Work Act 1974. P was said to have designed, manufactured and supplied a machine that created a flammable atmosphere. P pleaded guilty to an offence under section 6(1)(a) of the same Act.

Slow Progress

G had entered a limited plea in December 2010 accepting the risk assessment failures. They denied all other allegations and the case was then adjourned for a 'Newton Nearing'. A number of highly technical issues were canvassed by two experts instructed by the Defence, and then considered by two experts instructed by the Health and Safety Executive. Despite a full and particularised further basis of plea, the Health and Safety Executive declined to accept the Defence contentions so the case was listed for a trial of the issues by a Judge alone.

The Judge approved the proposed that the experts should meet to find a way forward. The parties were amenable to a joint meeting of experts, a practice normally reserved for civil proceedings, to see if the issues could be resolved without the need for a lengthy and costly hearing. Following the meeting issues were narrowed and the case was able to progress to sentence without a Newton Hearing.

The Result

In sentencing, His Honour Judge Teague QC fined P £50,000 and ordered them to pay £87,000 in costs. Accepting a number of mitigating points His Honour fined G £37.500, but then made a substantial reduction in the costs that had been claimed by the Health and Safety Executive from £135,000 to £50,000 saying that he was not convinced that all the costs were reasonable. It was also felt that the investigation and subsequent prosecution had drifted away from the truly relevant issues and that there was a need to guard against the ‘indiscriminate’ pursuit of all possible theoretical breaches of duty irrespective of their real importance.

Although G incurred costs in contesting allegations that were made by the Health and Safety Executive at the outset of the case, the Judge largely accepted the case as set out in the basis of plea and this resulted in a substantial reduction in fines and costs that would have otherwise resulted.

This is an example of what can be achieved by fighting the client’s corner on every point in difficult circumstances. An unusual avenue was followed for this type of case in order to achieve the best results given the impasse that had been reached. In light of the financial pressures facing the criminal justice system generally, it may well be worth reviewing and identifying more methods which would be transferable from civil practice into the criminal arena to save costs.

If you would like more information on this topic or an initial discussion with no obligation please call one of our partners: Sarah Wallace on 0207 421 3883 or 07808 899657, or Paul Haycock on 0114 274 4275.