On 2 November 2018, Anthony Vines appeared at the sentencing hearing of the Council in Cardiff Crown Court before the Recorder of Cardiff. The Council was committed for sentence from Cwmbran Magistrates Court where it had pleaded guilty to the single charge brought by the HSE of breaching s.3(1) of the HSWA 1974 over a period from 1 September 2008 to 10 December 2014.
The charge related, in summary, to the inadequate design and layout of Maesteg Comprehensive School which had insufficient bus bays for 5 of the 8 buses attending, to the levels of risk permitted and to the advice and monitoring provided by the Council. On 10 December 2014, two boys, going to catch a school bus home, crossed a live two-way road within school premises and were struck by a school minibus: one boy, 15 year-old Ashley Talbot, died at the scene and the other was injured. Maesteg Comprehensive School was a brand new school built via a private finance initiative.
In reliance upon the approach set out in the Definitive Guideline on Health and Safety Offences, the HSE contended for a High level of culpability, and a High likelihood of Level A harm. This gives a potential range of fine for a large organisation under the Guideline of £1.5m to £6m with a starting-point of £2.4m.
The Court was addressed by the Defence on the basis that the charge fell into 2 periods of differing culpability with the first half being Low. Considerable efforts were made by the Council during the first 3 years to limit the risk to a tolerable level working around the shortcomings in design. It was therefore argued the efforts were significant but inadequate on this occasion. It was also asserted that systems were in place but latterly, these not sufficiently adhered to or implemented. It was also argued that there was initially a Low likelihood of Level A harm as a result of the control measures put in place both by the Council and by the school.
The Recorder found that there was Medium culpability and a Medium likelihood of Level A harm resulting in Harm category 2.
As a result of the presence of the two next sentencing factors (the numbers exposed to the risk of harm and whether the offence was a significant cause of actual harm) coupled with the guidance in para 31 of Whirlpool to treat the death as an aggravating factor, the Recorder shifted the case into Harm category 1.
For a large business (£50m or over), Medium culpability for Harm category 1 gives a starting-point of £1.3m with a sentencing range of £800,000 to £3.25m. On this issue there was some discussion as to whether the appropriate figure for the local authority’s Annual Revenue Budget in accordance with the Guidelines should include the grant income received by the Council. The Recorder concluded that the figure for grants should be taken into account.
Whilst the prosecution asserted that there were aggravating factors, the Recorder concluded that there were no statutory or other aggravating factors but did conclude that there were strong mitigating factors which enabled her to reduce the starting-point from £1.3m to £900,000. These factors included the lack of relevant previous convictions, the good record of the council on health and safety, the co-operation with the HSE, the swift fixing of the problems and the substantial expenditure on an additional pupil drop-off zone. The Recorder also took into account the audit undertaken by the Council, the specific training provided for head teachers and the appointment of an additional officer.
Full credit was given for the early plea of guilty which reduced the sentence by a third from £900,000 to £600,000.
Having considered R v Havering Borough Council, the Recorder then decided to adopt the approach taken by Haddon-Cave J in R(HSE) v Shrewsbury and Telford NHS Trust (28.11.17) where he reduced the fine imposed following the death of 5 patients at the Princess Royal Hospital and Royal Shrewsbury Hospitals by 50% to reflect the Trust’s financial circumstances and on the basis that it was a public health care body. This reduced the fine from £600,000 to £300,000. Costs were agreed in the sum of approximately £30,000. The Council was granted 3 years to make payment.
The driver of the school minibus was the subject of a police investigation and was found not to have been at fault. The coroner reached a verdict of accidental death at the inquest where the Council was represented by Victoria Hillier.
R v Havering Borough Council EWCA Crim 242
R(HSE) v Shrewsbury and Telford NHS Trust (2017) 28 November unreported
Whirlpool UK Appliances Ltd v R (HSE) EWCA Crim 2186