Electricity North West Ltd v REGINA

Factual and Procedural Background

On 23 March 2017, the Defendant, a company operating an electricity distribution network in the north-west of England, was convicted in the Crown Court at Preston of contravening regulation 4(1) of the Work at Height Regulations 2005 (WAHR 2005) on count 2 of a three-count indictment. The company was acquitted on count 1 (breach of regulation 3(1) of the Management of Health & Safety at Work Regulations 1999) and count 3 (breach of section 2(1) of the Health & Safety at Work Act 1974). The conviction arose from an investigation into a fatal accident on 22 November 2013, where a linesman employed by the company fell from height while clearing ivy from a wooden pole. The company was sentenced on 31 March 2017 to pay a fine of £900,000 and a statutory victim surcharge. The company appealed both conviction and sentence with leave of a single judge.

The fatal accident involved the deceased linesman using a work positioning belt without a fall-arrest lanyard, which was contrary to safer prescribed methods such as using a Mobile Elevated Work Platform (MEWP) or a ladder. The prosecution alleged failures in planning, supervision, and safe execution of work at height, specifically the absence of proper planning and equipment availability. The company relied on generic and dynamic risk assessments as evidence of compliance, but the jury found deficiencies in planning, particularly the non-availability of a MEWP at the critical time.

Legal Issues Presented

1. Whether the conviction under regulation 4(1) of WAHR 2005 was sustainable given the acquittals on counts 1 and 3, specifically whether a failure to properly plan work at height without a material risk of harm constitutes an offence.
2. Whether the conviction on count 2 was logically inconsistent with the acquittals on counts 1 and 3.
3. Whether the sentence imposed was manifestly excessive, considering the nature of the offence and the acquittals on counts 1 and 3.

Arguments of the Parties

Appellant's Arguments

• The offence under regulation 4(1) of WAHR 2005 is one of strict liability but the conviction was inconsistent with the acquittals on counts 1 and 3, which indicated no foreseeable risk of harm.
• Count 2 overlapped with counts 1 and 3 and added nothing materially different; thus, the verdicts were inconsistent.
• The Judge erred in concluding that planning was required even in the absence of foreseeable risk of harm.
• The sentence was manifestly excessive as it was disproportionate to the culpability and harm, and the Judge improperly increased the fine based on the company's size.

Respondent's Arguments

• The duty under regulation 4(1) of WAHR 2005 to properly plan work at height is a strict duty, independent of risk foreseeability.
• The conviction was supported by evidence that the MEWP was not readily available at the time the work was carried out, constituting deficient planning.
• The separate counts required separate consideration by the jury, and the verdicts were not inconsistent.
• The sentence was appropriate under the Sentencing Council Definitive Guidelines, reflecting high culpability and harm category 3.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognized that the duty under regulation 4(1) of WAHR 2005 to properly plan work at height is a strict liability offence that does not require proof of foreseeable risk of harm. The absence of a MEWP readily available at the time the work was conducted constituted deficient planning, supporting the conviction on count 2 despite acquittals on counts 1 and 3 which related to risk assessments and exposure to foreseeable harm. The court noted that the jury had been properly directed to consider each count separately and that verdicts need not be consistent across counts.

Regarding the alleged inconsistency of verdicts, the court applied established appellate principles from precedent cases, emphasizing the limited scope for appellate interference unless no reasonable jury could have reached the verdicts. The court found a sufficient evidential basis for the conviction and rejected the argument that the verdicts were irreconcilably inconsistent.

On sentence, the court accepted that the Sentencing Council Definitive Guidelines applied and that the offence involved high culpability due to systemic failure to plan over a lengthy period. However, the court found the Judge erred in equating the offence with high culpability given the acquittals and the evidence, concluding the offence fell between low and medium culpability with harm category 3. The court held that the original fine was excessive and reduced it accordingly.

Holding and Implications

The court DISMISSED the appeal against conviction, affirming that a strict liability offence under regulation 4(1) of WAHR 2005 does not require proof of foreseeable risk and that the conviction was supported by evidence of deficient planning.

The court ALLOWED the appeal against sentence by reducing the fine from £900,000 to £135,000, finding the original sentence disproportionate to the culpability and harm established by the jury's verdicts.

The direct effect is that the company remains convicted but benefits from a substantially reduced financial penalty. No new precedent beyond the application of existing principles on strict liability offences and verdict consistency was established.