The Court of Appeal (CoA) reviewed a criminal conviction and the correlated fines in a health and safety breach case. While the Court upheld the conviction, it reduced the fine.
Background:
Exolum Pipeline System Ltd operates the largest fuel pipeline network in the UK. In 2016, Exolum suffered a ‘hot tapping’ which it repaired with a clamp. However, over the years concerns were raised by both the company monitoring the site and residents that fuel might still be leaking. In March 2018 workers investigated a suspected pipeline leak in an underground high-pressure fuel pipeline and so Exolum engaged a contractor to investigate. The work was carried out while the pipeline was still under pressure and pumping petrol.
During the dig, the excavation team sought guidance from Exolum which instructed them to carry on, despite the high risk and the potential of a flammable cloud of petrol vapour forming. After a small leak was confirmed, the site was evacuated, and the incident was reported to the Health and Safety Executive (HSE).
The HSE prosecuted Exolum for exposing the team to health and safety risk and for its failure to properly identify and control the risks. Exolum was fined £2.3 million plus £157,000 costs under Sections 2 and 3 of the Health and Safety at Work Act 1974 (HSWA). Exolum appealed against the conviction and the sentence.
Decision:
The CoA upheld the conviction but reduced the fine to £1.5 million. The Court did not find any justification for the uplift of amount forming the starting point within Harm category 2 in this case. The Court noted that, while Exolum’s action required a significant penalty, the original fine did not adequately reflect the mitigating factors such as the fact that the company had a good health and safety record and the earlier steps taken to address the leak. In the Judge’s opinion, “Had appropriate credit been afforded for the mitigating features, the fine would have been reduced to somewhere in the order of £1 million”.
Exolum tried to argue that the risk was merely theoretical and not “real” and, therefore, no case should have been allowed. The Court was however unconvinced and noted that “the risk in this case was not hypothetical, nor was it merely “a risk of a risk” as Mr Cooper put it. The existence of a foreseeable risk is an objective issue of fact”. The Court noted that the term risk within the meaning of the Act should be interpreted in its ordinary meaning as a possible danger rather than an actual danger as held in R v Board of Trustees of the Science Museum [1993].
Implications:
This decision highlights the importance of establishing stringent risk management practices in any company, especially those conducting operations involving a high risk. It also demonstrates that having a good record of health and safety can help to mitigate any sentence. Indeed, the CoA was quite sympathetic to the fact that it was an isolated instance of misjudgment of a “responsible company with a good track record”.
It is also significant as it upholds the understanding of ‘risk’ in health and safety law as originally outlined in R v Board of Trustees of the Science Museum [1993].