Reported Cases

Health & Safety

Richard Matthews QC led for the appellant in this successful appeal against a sentence imposed upon a subsidiary company where the sentencing Court had increased the fine to reflect that the defendant company was part of a much larger group with a turnover of billions of Pounds. The case involved asbestos risk, issues around causation of death and the sentencing of a subsidiary that is part of a group, where the parent company is a Very Large Organisation.

The Court of Appeal gave further guidance regarding the operation of the Sentencing Council’s Health and Safety Offences Definitive Guideline and, in particular, the circumstances in which a parent company’s turnover might be taken into account in Step 3 of the guideline. The appellant company, BC, appealed against a fine of £3 million imposed on them for an offence contrary to s.3(1) of the Health and Safety at Work, etc Act 1974 to which BC had pleaded guilty.

In allowing the appeal the Court of Appeal held  that at Step 2 under the guideline, a sentencing judge was not only concerned with turnover and the aggravating and mitigating features set out in the table in the guideline. Although Step 1 required an assessment of culpability in the range very high to low according to the factors listed, that did not mean that, in selecting a starting point within the appropriate range at Step 2, the judge must leave out of account, or not make, a quantitative assessment of the extent of the harm and culpability involved in the offending. An offender whose culpability was high because of the presence of a number of listed factors ought in principle to be punished more severely than an offender whose culpability is high because of the presence of just one factor. The presence of multiple culpability factors could properly be regarded as matter capable of increasing the starting point within the indicated range of fine as set out in the relevant table for the size of the organisation involved. In the present case, those matters justified a substantial increase above the starting point of £1.1 million in the relevant bracket and, given that BC’s turnover was significantly in excess of the starting point of £50 million, the judge’s starting point at Step 2 of £2,250,000 could not be faulted in light of her conclusion that a significant number of people were put at risk ([64]–[70]).

The Court held that the judge had gone wrong at Step 3 when she increased the fine from £2,250,000 to £4,500,000 on the basis of the parent company’s turnover. This course did not properly reflect the economic realities of the situation. The mere fact that one company might be the wholly owned subsidiary of a larger parent did not mean that the resources of the parent could be treated as available to, or as part of, the turnover of the subsidiary company. The guideline phrase “economic realities” could not be extended to mean that the parent’s resources belong to the subsidiary simply in order to justify a large increase in fine at Step 3, any more than they could be taken into account to increase the size of the subsidiary’s turnover for the purposes of the tables in Step 2.

Importantly, the Court held that it is wrong to take into account the parent’s turnover to increase the fine at Step 3 absent some special factor of the type identified in R. v Tata Steel UK Ltd [2017] EWCA Crim 704; [2017] 2 Cr. App. R. (S.) 29 , or R. v NPS London Ltd [2019] EWCA Crim 228; [2019] 2 Cr. App. R. (S.) 18 . There was no such factor here: the offence rose out of BC’s breach of duty that was not delegated to the parent, it was a large and profitable organisation in its own right, and there was no suggestion that it would be unable to pay the fine and require instead the parent to pay it, or that it would not be a going concern absent the financial support of the parent company. That it remitted its profits to its parent was nothing to the point. The fine before discount for plea should therefore have been £2,250,000. Applying a one-third discount for the guilty plea, a fine of £1,500,000 was substituted ([82]–[87]).

Richard Matthews QC appeared as leading counsel for the London Borough of Southwark, the owner and landlord of Lakanal. Six fatalities occurred when Lakanal, a block of maisonnette apartments caught fire. The inquests were held over some three months before a Construction Court Judge, appointed as Deputy Coroner, and a jury.

The inquest jury found particular failings on the part of London Fire Brigade that contributed to the deaths. See here for verdicts and related information.

Following this, the London Fire Brigade (London Fire & Emergency Planning Authority) sought to continue a criminal investigation and prosecution of the London Borough of Southwark in relation to the Regulatory Reform (Fire Safety) Order 2005. Richard Matthews QC led the three counsel team that sought to Judicially Review this decision, and the case was decided by the Administrative Court in a judgment delivered by the President of the Queen’s Bench Division, Sir Brian Leveson.

Richard Matthews QC appeared for the first defendant company, P Ltd, which was was convicted following a trial of corporate manslaughter of one of its employees, who had died after becoming trapped in an industrial oven. It was further convicted of offences under the Health and Safety at Work etc Act 1974, along with the second defendant director, M. In sentencing, the judge expressed his intention to that the penalty should bite against the director shareholders whilst at the same time ensuring that the company was preserved for the benefit of its employees. The judge imposed a fine of £200,000 on P Ltd.

Richard Matthews QC led for the defence in this defining appeal before the Lord Chief Justice of England and Wales, which concerned the sentence of very large organisations for health and safety offences and environmental offences. The approach adopted by the Court informed the subsequent guidelines issued by the Sentencing Council.

S, with turnover of £1.6 billion and an annual profit of £29 million, had been fined £700,000 for offences relating to the disposal of radioactive waste. N, with turnover of £6.2 billion, had been fined £500,000 following a collision at an unmanned level crossing which resulted in very serious injuries to a child. The judge found that S’s failure was systemic and potentially exposed the public and those who handled waste off-site to unnecessary risk. S had relevant previous convictions. The judge took into account the fact that the instant breaches were not deliberate or reckless, no harm had been done and the actual risk of harm was low.

S submitted that the level of fine equated to a major public disaster or loss of life, a significant nuclear event or an unmitigated environmental pollution incident. N submitted that a starting point of £750,000 would only be appropriate where there was more than one fatality, a public disaster, or where the defendant was convicted of corporate manslaughter.

S’s offences were of medium culpability, extending to management but with no actual harm and a very low risk of harm. Guilty pleas had been entered at the first opportunity and S had co-operated considerably. Account was also taken of its previous offences. It was not appropriate to consider a fine of £1 million as apposite only to a major disaster. That would ignore the court’s obligation under s.164 of the 2003 Act to have regard to the offender’s financial circumstances and the sentencing guidelines. There was no ceiling on the amount of fine that could be imposed. It was clear that a fine of £700,000 after a guilty plea reflected moderate culpability, no actual harm and a very low risk of harm. It also had to be viewed against the requirement that directors or shareholders of companies involved in the nuclear industry had to give the highest priority to safety, as Parliament had directed. The fine imposed would achieve the statutory purposes of sentencing by emphasising to those directors and professional shareholders the seriousness of the offences, and provide a real incentive to remedy the failures found to exist.

Appeal regarding nature of risk and asbestos exposure, in regard to the Health and Safety at Work etc. Act 1974. Led for prosecution.

Richard Matthews QC was leading counsel for the claimants. The case concerned a series of Enforcement Notices issued under the Plant Protection Products Regulations 2011, which were quashed by consent follow a challenge by way of judicial review.

Richard Matthews QC led the three counsel team that prosecuted Marks & Spencer Plc and others in regard to the control of and exposure to asbestos during refurbishment works to stores. The case followed a lengthy investigation into the Marks & Spencer Plc, refurbishment contractors and asbestos removal contractors undertaking work in various stores On 27 September 2011, Marks & Spencer Plc was fined £1 million.

Richard Matthews QC led for the prosecution in these joined appeals that resulted in the defining Court of Appeal authority on the nature of risk, causation and foreseeability, delivered by Lord Justice Hughes (as he then was).

The case followed the decision of the House of Lords in Chargot and the Supreme Court in Baker v Quantum [2011] UKSC 17 [2011] 1 WLR 1003.

In Tangerine & Veolia, the Court described how, “It is apparent from the history of these cases, and of others which have been cited to us, that the deceptively concise terms of [the Health and Safety at Work etc. Act 1974] may have given rise to a number of unresolved conceptual debates which are troubling Crown Courts. The present two cases are said to give rise to the following questions,

  1. What is the relationship between ‘safety’ (s 2) and ‘risk’ (to safety) (s 3)?
  2. Where there has been an injury is the Crown required to prove that the offence caused it?
  3. To what extent must the Crown prove that the risk ‘derives’ from the defendant’s activities?
  4. What, if anything, is the relevance to these offences of foreseeability of injury or of an accident which has in fact happened?

The Court went on to answer all these questions.

Richard Matthews QC appeared for the Prosecution in relation to the prosecution of two individuals and a company for gross negligence manslaughter and corporate offences following the death of two firemen in an explosion at a fireworks factory.

Richard Matthews appeared for respondents. This House of Lords decision provided the seminal definition of the  meaning and elements of the offences of breaching ss 2 and 3 Health and Safety at Work etc Act 1974 and the liability of directors under s 37 of the Health and Safety at Work etc. Act 1974.

Richard Matthews QC appeared for the appellant in this appeal against a sentence imposed for health and safety offences following acquittal on corporate and individual manslaughter charges, in which the Court of Appeal reduced the sentences imposed by the Crown Court judge.

Richard Matthews appeared for Appellants in this interlocutory appeal to the Court of Appeal from a preliminary ruling concerning directors liability under s 37 Health and Safety at Work etc Act 1974.

Richard Matthews appeared for Appellants. This was an interlocutory appeal to the Court of Appeal from a preliminary ruling concerning foreseeability of risk and the Management of Health and Safety at Work Regulations 1999.

Richard Matthews QC appeared for the prosecution in this Health and safety and environmental prosecution following the Buncefield oil storage depot explosion and disaster.

Corporate Manslaughter and Gross Negligence Manslaughter

Richard Matthews QC appeared for the first defendant company, P Ltd, which was was convicted following a trial of corporate manslaughter of one of its employees, who had died after becoming trapped in an industrial oven. It was further convicted of offences under the Health and Safety at Work etc Act 1974, along with the second defendant director, M. In sentencing, the judge expressed his intention to that the penalty should bite against the director shareholders whilst at the same time ensuring that the company was preserved for the benefit of its employees. The judge imposed a fine of £200,000 on P Ltd.

Richard Matthews QC appeared for the Prosecution in relation to the prosecution of two individuals and a company for gross negligence manslaughter and corporate offences following the death of two firemen in an explosion at a fireworks factory.

Richard Matthews QC appeared for the appellant in this appeal against a sentence imposed for health and safety offences following acquittal on corporate and individual manslaughter charges, in which the Court of Appeal reduced the sentences imposed by the Crown Court judge.

Inquests and Inquiries

Richard Matthews QC represented the Whirlpool Corporation, at the first phase of the Grenfell Tower Inquiry, the Public Inquiry into the fire at Grenfell Tower on 14 June 2017.

The Phase 1 report was published in October 2019

Appeared as leading counsel for the London Borough of Southwark, the owner and landlord of Lakanal. Six fatalities occurred when Lakanal, a block of maisonnette apartments caught fire. The inquests were held over some three months before a Construction Court Judge, appointed as Deputy Coroner, and a jury.

The inquest jury found particular failings on the part of London Fire Brigade that contributed to the deaths. See here for verdicts and related information.

Following this, the London Fire Brigade (London Fire & Emergency Planning Authority) sought to continue a criminal investigation and prosecution of the London Borough of Southwark. Richard Matthews QC led the three counsel team that sought to Judicially review this decision, and the case was decided by the Administrative Court in a judgment delivered by the President of the Queen’s Bench Division, Sir Brian Leveson.

Richard Matthews QC appeared as leading counsel for the London Borough of Southwark, the owner and landlord of Lakanal. Six fatalities occurred when Lakanal, a block of maisonnette apartments caught fire. The inquests were held over some three months before a Construction Court Judge, appointed as Deputy Coroner, and a jury.

The inquest jury found particular failings on the part of London Fire Brigade that contributed to the deaths. See here for verdicts and related information.

Following this, the London Fire Brigade (London Fire & Emergency Planning Authority) sought to continue a criminal investigation and prosecution of the London Borough of Southwark in relation to the Regulatory Reform (Fire Safety) Order 2005. Richard Matthews QC led the three counsel team that sought to Judicially Review this decision, and the case was decided by the Administrative Court in a judgment delivered by the President of the Queen’s Bench Division, Sir Brian Leveson.

Richard Matthews QC appeared for Taunton Rugby Football Club which had hosted a public fireworks display on the 4th November 2011 on its ground, with the independent firework operator launching the display some 250+m from the M5 motorway; thick fog formed on the motorway that night and seven fatalities occurred in a large multiple vehicle collision and resultant fire. The Inquest examined the causes and possible contributions to the fog.

BBC News reported, “The inquest in April 2014 concluded the firework smoke was not to blame for causing the crash, but the coroner said he could not rule out the possibility that smoke and fog had mixed and reduced visibility on the motorway.”

The Coroner subsequently sent a report to the Department for Transport, the Health and Safety Executive and the Department for Business Skills and Innovation.

Appeared as counsel for the HSE and its Chief Executive in the Inquiry that was established to examine the operation of the commissioning, supervisory and regulatory organisations and other agencies in relation to their monitoring role at Mid Staffordshire NHS Foundation Trust between January 2005 and March 2009. See here for final report.

Environmental Breaches

Environmental prosecution by Natural England in which Richard Matthews QC acted for the appellant (but not in the court below) following conviction in respect of the felling of 43 trees in an area containing a Site of Special Scientific Interest without an authorisation and the consequent imposition of a £450,000 fine and a sum of costs of approximately £457,000.

The appeal concerned legal arguments regarding causation and the appropriate test in law.

The Lord Chief Justice of England and Wales described how Richard Matthews Qc had “conducted the appeal with his customary skill and learning’.

Richard Matthews QC led for the defence in this defining appeal before the Lord Chief Justice of England and Wales, which concerned the sentence of very large organisations for health and safety offences and environmental offences. The approach adopted by the Court informed the subsequent guidelines issued by the Sentencing Council.

S, with turnover of £1.6 billion and an annual profit of £29 million, had been fined £700,000 for offences relating to the disposal of radioactive waste. N, with turnover of £6.2 billion, had been fined £500,000 following a collision at an unmanned level crossing which resulted in very serious injuries to a child. The judge found that S’s failure was systemic and potentially exposed the public and those who handled waste off-site to unnecessary risk. S had relevant previous convictions. The judge took into account the fact that the instant breaches were not deliberate or reckless, no harm had been done and the actual risk of harm was low.

S submitted that the level of fine equated to a major public disaster or loss of life, a significant nuclear event or an unmitigated environmental pollution incident. N submitted that a starting point of £750,000 would only be appropriate where there was more than one fatality, a public disaster, or where the defendant was convicted of corporate manslaughter.

S’s offences were of medium culpability, extending to management but with no actual harm and a very low risk of harm. Guilty pleas had been entered at the first opportunity and S had co-operated considerably. Account was also taken of its previous offences. It was not appropriate to consider a fine of £1 million as apposite only to a major disaster. That would ignore the court’s obligation under s.164 of the 2003 Act to have regard to the offender’s financial circumstances and the sentencing guidelines. There was no ceiling on the amount of fine that could be imposed. It was clear that a fine of £700,000 after a guilty plea reflected moderate culpability, no actual harm and a very low risk of harm. It also had to be viewed against the requirement that directors or shareholders of companies involved in the nuclear industry had to give the highest priority to safety, as Parliament had directed. The fine imposed would achieve the statutory purposes of sentencing by emphasising to those directors and professional shareholders the seriousness of the offences, and provide a real incentive to remedy the failures found to exist.

This case involved a prosecution for alleged breach of Environmental Protection Act 1990 (keeping of controlled waste in a manner likely to cause pollution) arising out of a tyre fire that burned for weeks at the defendant’s recycling premises, which was operated subject to an Environmental Permit with license conditions and thus was the subject of regular inspection by the Environment Agency.

Richard Matthews QC acted for the defence. After two days of legal argument the EA offered no evidence and the defendant company was acquitted with costs – reported here. The case involved extensive expert evidence and argument concerning the status of Home Office Guidance.

Richard Matthews QC appeared for the defence. This was a prosecution of two companies by the Environment Agency for alleged breaches of the Transfrontier Shipment of Waste Regulations. The prosecution was not proceeded with following the service of a defence statement that challenged the prosecution’s sampling of alleged waste and its evidence concerning the percentage contamination threshold.

The decision received widespread industry publicity and reporting