LFH Moonfleet Manor Ltd v R.

Factual and Procedural Background

On 13 July 2023, in the Crown Court at The City, Company A was convicted by a jury of failing to conduct its undertaking, namely the running of a hotel, in such a way as to ensure, so far as was reasonably practicable, that persons not in its employment, including guests and visitors, were not exposed to health and safety risks, contrary to sections 3(1) and 33(1)(a) of the Health and Safety at Work etc. Act 1974. Company A was acquitted of a separate count concerning failure to make suitable arrangements for managing a construction project under the Construction (Design and Management) Regulations 2015.

Two other companies, Company B and Company C, were also convicted of offences related to health and safety management during the construction phases. Company C had pleaded guilty earlier in the Magistrates' Court and was committed to the Crown Court for sentencing.

On 24 October 2023, the trial judge imposed fines on the three companies: £160,000 on Company C, £60,000 on Company B, and £200,000 with a costs order of £143,482.04 on Company A. Company A appealed the sentence with leave of the Single Judge.

The offences arose from roof replacement works at the hotel starting in February 2019. During the works, several incidents occurred, including a scaffold clip falling and a crane lifting operation near areas accessible to hotel guests. Most notably, on 13 June 2019, a stone slate fell from the roof and struck a three-year-old child, causing a depressed skull fracture and hospitalisation. The child’s neurologist indicated no obvious long-term implications apart from a possible increased risk of epilepsy.

Precautions against falling objects were limited to single-plank toe-boards on scaffolding edges, and pedestrians were allowed to pass through a known hazardous area referred to as the "pinch-point". Despite warnings from site managers and scaffolders about the risk to the public, who used this route to access the swimming pool, the hotel management did not implement adequate safety measures or alternative routes for pedestrians until after the accident.

Legal Issues Presented

1. Whether the trial judge erred in his categorisation of the offence under the sentencing guideline, particularly regarding the appellant's level of culpability and harm in relation to count 2, given the acquittal on count 1.
2. Whether the sentence imposed on the appellant was disproportionate due to the appellant's relatively low turnover within the small organisation category, warranting a downward adjustment of the fine.

Arguments of the Parties

Appellant's Arguments

• The judge’s categorisation of the offence was based on an erroneous factual foundation because the criticism of the appellant’s attitude towards health and safety concerns ("pushback") related only to count 1, from which the appellant was acquitted, and thus should not have influenced culpability and harm assessment under count 2.
• The appellant’s turnover being at the lower end of the small organisation range justified a further downward adjustment of the fine, which the judge failed to apply, resulting in a disproportionately high sentence.

Court's Response to Arguments

• The court found that the prosecution’s evidence and legal directions made clear that the "pushback" evidence was relevant to both counts, and the judge did not err in considering it when assessing culpability and harm under count 2.
• The court concluded that although the appellant had made suitable arrangements for managing construction work (count 1), it failed to conduct the running of the hotel safely by ignoring warnings about pedestrian risks at the pinch-point, justifying the judge’s assessment of medium culpability and high likelihood of harm.
• The court held that the judge properly applied the sentencing guidelines, including the proportionality assessment at step 3, and that the fine imposed was fair, proportionate, and sufficiently substantial to have a real economic impact consistent with punishment and deterrence objectives.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analysed the evidential basis for counts 1 and 2, concluding that the evidence of the appellant’s "pushback" to health and safety concerns was relevant to both counts. The distinction between the counts lay in the nature of the allegations: count 1 concerned arrangements for managing construction work, while count 2 addressed the overall conduct of running the hotel to ensure safety of guests and visitors.

The court accepted the trial judge’s findings that the appellant failed to act on repeated warnings about the obvious hazard posed by the pinch-point, where pedestrians were exposed to falling objects, and that this failure demonstrated medium culpability and a high likelihood of harm under the sentencing guidelines.

Regarding the sentence’s proportionality, the court noted that the appellant’s turnover was at the lower end of the small organisation range but emphasized that the fine must be substantial enough to impact management and shareholders to promote compliance with health and safety laws. The court agreed with the trial judge that no reduction in the fine was warranted based on turnover or operating profits and that the sentence was proportionate.

Holding and Implications

The appeal against sentence is DISMISSED.

The decision upholds the trial judge’s assessment of culpability, harm, and the proportionality of the fine imposed on Company A. The ruling confirms the application of sentencing guidelines in cases involving health and safety breaches affecting the public and reinforces the principle that failure to address known risks can justify substantial penalties. No new legal precedent was established beyond the application of established sentencing principles to the facts of this case.