Whirlpool Sentencing Appeal: Definitive Guideline

In Whirlpool UK Appliances Ltd v R [2017] EWCA Crim 2186 the Court of Appeal reduced a sentence on appeal and gave detailed consideration to the application of the Definitive Guideline on Corporate Manslaughter, Health and Safety and Food and Safety Hygiene Offences (“the Guideline”) in the context of “very large organisations”.

A self-employed alarm and telecommunications contractor had died following an accident at the premises of the appellant (“Whirlpool”). Whirlpool pleaded guilty to an offence contrary to s3(1) of the Health and Safety at Work Act 1974 (an employer’s obligation to conduct its undertaking so as to ensure, so far as reasonably practicable, that non-employees are not thereby exposed to risks to their health and safety). In essence, its failings involved inadequate risk assessments and the Crown Court judge found that there was significant mitigation. Applying the Guideline, there was low culpability and harm category 3 (low likelihood of level A harm arising). The Crown Court judge sentenced Whirlpool to a fine of £700,000. Whirlpool appealed on the basis that the judge had erroneously applied the Guideline, resulting in a manifestly excessive fine.

The Court of Appeal noted that although the Guideline was replete with figures, courts should resist the temptation to approach it in an arithmetic way (at [12]).

At Step Two a starting point and category range are determined by focusing on turnover. The Guideline describes organisations as “large” if their turnover exceeds £50m. It then defines “very large organisations” as those whose turnover very greatly exceeds this threshold and says that in such cases it “may be necessary to move outside the suggested range to achieve a proportionate sentence”. Whirlpool’s turnover was £700m and the Crown Court judge had used a starting point of £1.2m for a fine, whereas the starting point would only have been £35,000 for a “large organisation”.

The first issue was the impact of a death on the approach to the ranges set out in the Guideline. The Court considered that even for a “large organisation”, the fact of a death would justify a move not only into the next category, but to the top of the next category range, suggesting a starting point of £250,000 [31].

The second issue was how one identifies and then treats a “very large organisation” for the purposes of the Guideline. The Court agreed that Whirlpool was a “very large organisation”, as its turnover was several multiples of £50m [33]. The fact of death had already taken the starting point to the top of the next category range (£250,000); the next range was from £180,000-£700,000. The Court held that Whirlpool’s status as a “very large organisation” should result in the starting point moving up to £500,000 [36], rather than the figure of £1.2m reached by the Crown Court judge. Taking into account mitigation, this figure reduced to £450,000 [37]. The Guideline was subtle enough to recognise that culpability, likelihood of harm and harm itself should be properly reflected in any fine, as well as turnover.

The third issue was the impact of relatively poor profitability in the context of an organisation with a substantial turnover. The Court held that the broader financial health of a company came into play at Step Three, rather than at Step Two, which focused on turnover [13]. At Step Three the court must “check whether the proposed fine based on turnover is proportionate to the means of the offender”, which specifically included having regard to profitability. Relevant factors would be whether the low profitability had been consistent over recent years and whether directors and senior management were handsomely paid [38]. In Whirlpool’s case, the Court did not feel that the fine required adjustment [39]. Its recent loss was a result of two exceptional items and the fluctuations in profitability did not affect directors’ remuneration.

Using a starting point  of £450,000 and reducing this to take into account the guilty plea, the appropriate fine was £300,000 rather than £700,000 [41].