AG v D A Richardson [2000] JRC 59 (07 April 2000)

JUDGMENT THE DEPUTY BAILIFF: 1. This fork-lift truck was clearly in a poor condition. Among other defects it had an inoperative hand-brake and under-inflated and worn rear tyres. What makes it more serious is that regular examinations by the insurance company employed by the defendant company had shown defects which had not been addressed. For example reports in 1996, 1997 and 1998 all referred to the deteriorated driver's seat and significantly the report of the 12 th August, 1998, stated that the defective hand-brake should be repaired within one month, but nothing was done and this accident of course occurred in February 1999. Indeed we have heard that there had been no service by SGB since November, 1996, although - we were told - routine matters were attended to by the company's own staff. 2. The Court has made clear in recent cases that historically the fines for breaches of the Health & Safety at Work (Jersey) Law 1989 have been too low and that they are to be increased. The objectives of the legislation and prosecutions thereunder are to provide a safe environment for those who work and fines need to be large enough to bring home the message that that must be done. 3. In this case, Defence Counsel at one stage indicated that, as this was a small family company, the fine should reflect this but no financial information was put forward. The Court wishes to take the opportunity of quoting an extract from the decision in R-v- Howe & Sons (Engineers) Limited (1999) 1 All ER 253, on what course must be followed if defendants wish the Court to take account of their means: "Any fine should reflect not only the gravity of the offence but also the means of the offender and this applies just as much to corporate defendants as to any other. Difficulty is sometimes found in obtaining timely and accurate information about a corporate defendant's means. The starting point is its annual accounts. If a defendant company wishes to make any submission to the Court about its ability to pay a fine it should produce copies of its accounts and any other financial information on which it intends to rely in good time before the hearing, both to the Court and to the prosecution. This will give the prosecution the opportunity to assist the Court should the Court wish it . Usually the accounts need to be considered with some care to avoid reaching a superficial and perhaps an erroneous conclusion. Where accounts or other financial information are deliberately not supplied, the Court will be entitled to conclude that the company is in a position to pay any financial penalty it is minded to impose. Where the relevant information is provided late it may be desirable for sentence to be adjourned, if necessary at the defendant's expense, so as to avoid the risk of the Court taking what it is told at face value and imposing an inadequate penalty". 4. On reflection Defence Counsel in this case withdrew any suggestion that the case should be adjourned for financial information and was content that the Court should proceed today without such information. Counsel then went on to say that, in the light of recent cases, he thought there was a starting point of some £4,000 to £5,000 per count. We have to say that this is an erroneous basis on which to proceed. The Court has to consider the facts of each case and the seriousness of the breach and that is what determines the level of sentence. There is no tariff nor does the Court consider technical matters such as the number of counts. 6. Counsel did however point to a number of matters of mitigation. This is the first offence by the company. It pleaded guilty. It co-operated fully with the enquiry and it has clearly made considerable efforts since the accident to improve its safety procedures. 7. Furthermore, as the Crown has accepted, there is no evidence that the defects in this fork-lift truck were the direct cause of the accident. Nevertheless, as we say, the Court has made it clear that the fines must be at an appropriate level in these cases and has given notice of an increase. 8. Having regard to all the mitigation we are prepared to reduce the fine to £8,000. We also order the payment of costs of £2,500. 9. We do finally say this, Madame Solicitor: from what we were told - and of course that may not be wholly accurate - it would seem to us extremely oppressive for there to be a prosecution of the individual defendant in relation to the same defects in the fork-lift truck and we hope the Attorney General will look at the matter. Authorities. Attorney General -v- C. I. Bakery, Ltd. (21 st February 1997) Jersey Unreported. Attorney General -v- New Lyn Apartments, Ltd. (12 th December 1997) Jersey Unreported. Attorney General -v- Hacquoil & Cook, Ltd. (1 st May 1998) Jersey Unreported. Attorney General -v- Cowley Farm, Ltd. (7 th August 1998) Jersey Unreported. Attorney General -v- Regal Construction (Jersey) Ltd. (21 st August 1998) Jersey Unreported. Attorney General -v- Stansell, Q. V. C., Ltd (15 th October 1999) Jersey Unreported. R -v- Howe Son (Engineers) Ltd. [1999] 1 All ER 253. Page Last Updated: 02 Nov 2015 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII