NOTE OF APPEAL AGAINST SENTENCE BY SCOTTISH POWER GENERATION LTD AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 99
HCA/2016/294/XC
Lord Justice General
Lord Brodie
Lord Bracadale
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL AGAINST SENTENCE
by
SCOTTISH POWER GENERATION LTD
Appellants
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Gray QC, BT Smith; Pinsent Masons LLP, Glasgow
Respondent: Brown QC AD; the Crown Agent
3 November 2016
Introduction
[1] This appeal concerns the level of fine which is appropriate in respect of breaches of health and safety regulations by a very large corporation. It raises the issue of the extent, if any, to which the Scottish Courts should have regard to guidelines produced by the Sentencing Council of England and Wales.
General
[2] On 12 May 2016, at the Sheriff Court in Dunfermline, the appellants pled guilty, under the procedure permitted by section 76 of the Criminal Procedure (Scotland) Act 1995, to a charge which libelled that:
“between 1 March ... and 12 October 2013 ... at Longannet Power Station ... you ... being an employer, and having a duty ... to ensure ... the health, safety and welfare at work of your employees, and ... in particular a duty to ensure ... that work equipment was maintained in an efficient state, in efficient working order and in good repair, did fail to ensure ... the health and safety at work of your employees who were required to conduct plant checks within Unit 4 ..., a task which required them to access an area in close proximity to leak off pipework which ... incorporated a valve which could be manually opened and closed, ... the valve having been identified by you as faulty in that it was missing an index plate designed to limit the rotation of the hand wheel which opened and closed it, and you did fail to provide and maintain plant and a system of work that were ... safe and without risks to the health of ... employees ... in that you failed to ensure that the valve was maintained in an efficient state, in efficient working order and in good repair and failed to have a system in place to adequately manage and monitor the status of the valve after it had been identified by you as faulty ...
and in consequence thereof, on 12 October 2013, David Roscoe, your employee, was conducting routine plant checks within ... Unit 4, when he observed steam emitting from pipework ... being connected to the valve, and turned the valve to close it, whereupon he was engulfed in high-pressure high-temperature steam to his severe injury, permanent disfigurement and permanent impairment;
CONTRARY to section 2(1) and section 33(1)(a) of the Health and Safety at Work Act 1974.”
[3] On 31 May 2016 the sheriff fined the appellants £1,750,000, reduced for the early plea from £2,500,000.
Facts
[4] The accident involved a faulty valve installed in pipework through which high-pressure, high-temperature steam passed. The valve was in the basement area of one of four generating plants. The area was little used by personnel. The valve, which was operated by manually turning a spoked wheel, had been installed in about September 2007, when it had been given a certificate of test and compliance. On 6 May 2009, it was identified as having a fault. An index plate and mechanical stop, which prevented the wheel rotating back through from the closed position to open, were missing. It was apparently not known by the appellants whether the valve had been installed without this plate and stop or whether they had been removed later. The fault was registered and the appropriate work order for a repair was issued.
[5] Steps were taken to prevent the valve being operated meantime. A padlock was placed on it. The only key to that was kept in the permit office. It had a label attached to it, known as a “red peril” label. The key required to be signed out before it could be removed.
[6] The repair order was cancelled on 7 November 2011 by a mechanical workshop engineer. The reasons for this are apparently also unknown to the appellants. The valve had not been repaired.
[7] The padlock was last seen in March 2013, when certain work was carried out on the system. Sometime after that, it had been removed. The appellants have no record of who removed it, and hence who took the key from the permit office, nor when that had happened.
[8] On 27 September 2013, steam was noticed coming from the valve. A work order for the valve to be cut out and replaced was raised, but the contractor doing this did not observe that the index plate was missing. The order stated that the work should be carried out within one to four weeks.
[9] On 12 October 2013, an employee of the appellants, namely David Roscoe, was conducting routine checks when he noticed steam coming from pipework associated with the valve. He turned the wheel in an attempt to close the valve. He was unaware of the fault. The valve turned through the closed position and into open mode. Mr Roscoe was immediately engulfed in high temperature steam under pressure. It was accepted that Mr Roscoe had been a good and conscientious employee. When he had attempted to close the valve, he was doing no more or less than that which he was employed to do.
[10] Mr Roscoe, who was aged 53, had managed to get away after a second or two. He went to an emergency shower located a short distance away. He was able to radio for help. Nevertheless, the front of his lower body and his legs were very badly burned. His arms and neck were also affected. He underwent five operations. Two skin grafts were required. He was an in-patient for four weeks. He has had, and continues to receive, out-patient treatment, including counselling for Post Traumatic Stress Disorder. He was medically retired in December 2015. His life has been significantly affected. His mobility has been impaired. He had previously been a keen swimmer, walker and canoeist. He has recently been able to return to swimming, but is self-conscious about his appearance. He will require to apply emollients for the rest of his life. He cannot expose his arms or legs to sunlight. He has permanent scarring, although this will fade to a degree in time.
The Guideline
[11] The Sentencing Council of England and Wales has, as one of its central purpose, the promotion of greater consistency in sentencing, whilst maintaining the independence of the judiciary. Its president is the Lord Chief Justice and its members include Lord Justices of Appeal, High Court and Circuit Court judges as well as legal professionals and others involved in the justice system. It produces sentencing guidelines after extensive public consultation.
[12] In 2010, the Council’s predecessor, namely the Sentencing Guidelines Council, had issued its Corporate Manslaughter & Health and Safety Offences Causing Death: Definitive Guideline. Clearly this was concerned only with fatal cases. It consisted of listings of factors which would make an offence more or less serious. Although it was said (p 5) in relation to fines, that “Smallness does not by itself mitigate, and largeness does not by itself aggravate”, size, in the sense of means, was relevant. The financial consequences of a fine required to be considered. There was very little actual guidance on the level of fines. It was said that they required to be punitive and sufficient to have an impact. An appropriate fine for corporate manslaughter ought seldom to be less than £500,000 and may be measured in millions of pounds. Where a breach of health and safety regulations resulting in death had occurred, the fine should seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.
[13] On 3 November 2015 the Sentencing Council published the “Health and safety offences, corporate manslaughter and food safety and hygiene offences: Definitive Guideline”. This is applicable in England and Wales to all sentences after 1 February 2016, notwithstanding the date of the offence. It was produced with a view to achieving greater consistency in this area of sentencing, when the level of offending was low and many judges had little experience in this area. This was all against a background in which there was a wide-spread view that the sentences imposed on large corporate offenders were far too low. The Guideline provides a range of fines appropriate to particular offences and categories within each offence indicative of seriousness. There is a starting point (Step one) for each category, from which the sentencer can start calculating a provisional sentence. Further features of the offence or offender, which are regarded as aggravating or mitigatory factors, will be taken into account (Step two). There are then a number of other factors which may require a final adjustment to the level of fines.
[14] Step one concerns, first, a determination of the offence category by reference to culpability and harm factors set out in tables. “Very high” involves a deliberate breach or flagrant disregard of the law. “High” is either that the offender fell “far short” of the appropriate standard by, for example, allowing breaches to subsist over a period of time, or a “serious and/or systemic failure within the organisation to address risks”. Medium would include a situation where a system was in place, but it was not sufficiently adhered to or implemented. Secondly, Step one involves identification of a category based on the risk of harm created by the offence. This assessment requires a consideration of both the seriousness of the harm and the likelihood of that harm arising. Seriousness will be at Level B if the harm risked is physical or mental impairment which, whilst not involving lifelong dependency on third party care (Level A), has a substantial and long term effect on the victim’s ability to carry out day to day activities or on his or her ability to return to work. If the likelihood of harm is “high” then it will fit into Harm category 2. If it is medium, then it would be category 3. Two further factors have to be considered before fixing upon a category. The first is whether the offence exposed a number of persons to the risk. The second is whether the offence caused significant harm. Either can involve moving the harm category up (but not down).
[15] Step two involves the selection of a table within which to place the offender. These are fixed by reference to levels of turnover. The “Large” table is for organisations with a turnover of £50 million or more. However, there is a caveat that, in the case of “very large organisations”, it may be necessary to move outside the range in order to achieve a proportionate sentence. The sentencer has to reach a starting point in accordance with the appropriate table.
[16] As will be seen, the sheriff selected “high” culpability and Harm Category 2. For a large organisation, this produces a starting point of £1,100,000 and a range of £550,000 to £2,900,000. However, the task for the sentencer is then to determine where, within the range, the sentence should lie. This involves a consideration of any mitigatory factors (eg no previous convictions, voluntary steps to remedy the problem, co-operation, good health and safety record) or aggravating features (eg previous convictions, cost cutting at the expense of safety, poor health and safety record).
[17] Once all of this has been done, there must be a consideration of certain listed financial factors to ensure that the fine is proportionate. Step three requires checking whether the fine is proportionate to the overall means of the offender. The stated principle is that the fine must be “sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation”. This is derived from dicta in some of the recent cases in England (infra). Steps four and five (and seven to nine) are not relevant for present purposes. Step six is the reduction for an early plea.
Mitigation
[18] It was submitted to the sheriff that the breach was localised and the case was one in which there had been an unexplained failure in a system. It was accepted that the appellants had failed to have a system which adequately managed and monitored the status of the valve, but it was only one of 280 located over the four plants. It was accepted too, that, if the valve wheel was to be turned, the risk of harm was “high”. However, that risk only involved a few maintenance engineers. The appellants had a well-resourced system for the management of health and safety, which it took very seriously. They had suspended work immediately after the accident and had fully co-operated with the Health and Safety Executive in their investigations.
[19] It was the contention of the appellants that the sheriff should not have any regard to the 2015 Guideline. Only guidelines approved by the High Court, such as the former (2010) Guideline, (endorsed in HM Advocate v Discovery Homes (Scotland) 2010 SCCR 765) could be regarded as relevant. The sheriff ought to follow the principles set out in R v Balfour Beatty Rail Infrastructure Ltd [2007] 1 Cr App R (S) 65 which had been followed in HM Advocate v Munro & Sons (Highland) 2009 SCCR 265 (at paras [24]) and [26]; see also Scottish Seafarms v HM Advocate 2012 SLT 299 and Dundee Cold Stores v HM Advocate 2012 SLT 1173). The 2015 Guideline was mechanistic and formulaic (yet complex and confusing). It applied to English sentencing practice, whereas in Scotland the appropriate guidelines were in Scottish Sea Farms (supra).
[20] Despite having produced the 2015 Guideline for the sheriff’s information, the Crown commented that the tables were “not helpful”. Rather, the court should continue to have regard to the earlier (2010) Guideline.
The sheriff’s reasoning
[21] The sheriff reports that he determined that he should “have regard to the [2015] guidelines”. There was no reason for the levels of fine to be different north and south of the border. The ratio of the Scottish cases did not restrict the court to considering only guidelines in force when these cases had been decided. In any event, the factors to be considered according to the 2015 Guideline did not differ, to any material extent, from those in the Scottish cases, such as Scottish Sea Farms (supra).
[22] The sheriff considered that the circumstances of the offence demonstrated a breach of duty falling far short of the appropriate standard. The risk posed by the faulty valve had been high. An acceptable short term measure, namely the red peril key, and the work order, had been put in place. Nothing had been done about the work order. It had been cancelled for reasons which were not explained. The padlock had been removed prior to the work being carried out, again for unexplained reasons. The key had been taken from the office without any signature. The valve was in a dangerous condition from March 2013. When it was noted to be leaking, the system had failed to connect any new fault with that which had existed since 2009. The appellants had produced no explanation for any of these failures.
[23] The sheriff took the view that these failures fell within the description of “high culpability” in the 2015 Guideline. The Guideline described such a case as one where the offender “fell far short” of the appropriate standard by allowing breaches to subsist over a long period of time, or involved serious and/or systemic failures to address risks to health and safety. The sheriff did not consider that the circumstances fell into the medium category. Rather, there was no proper system in place at all. On one view, he reasoned, this case involved a deliberate breach of, or flagrant disregard for the law, which would have put it into the “very high” culpability category. He was prepared to give the benefit of the doubt on this to the appellants in the absence of information on the level at which the relevant decision to remove the red peril padlock had been taken. The fact, that only a few employees might have been at risk, did not reduce the likelihood of harm.
[24] The appellants were owned by Scottish Power Generation Holdings Ltd, a subsidiary of Scottish Power Ltd, who were in turn part of the multi-national conglomerate Iberdrola SA. The sheriff found that the accounts produced by the appellants were of limited assistance. They were not consolidated and did not disclose the finances of the group of companies. The appellants’ turnover was just over £1.3 billion in 2014 and 2015, with the appellants sustaining losses for both years. It was accepted that the appellants could pay any fine which was imposed.
[25] The sheriff reports that “applying the guidelines”, the company fell within the description of “very large”; being one with a turnover in excess of £50 million. The “starting point” for a fine for an offence of “high” culpability with a harm category of “2” was £1.1 million, with a range between £550,000 to £2.9 million. He then stated that, having regard to “the factors referred to above and the size of the company, together with the lack of any record and the steps which have been taken since to improve safety”, he selected a fine towards the upper end of the range. Had there been no mitigating factors, he would have moved outside the range, which would have been permitted if the offence had been a significant cause of harm, but he considered £2.5 million appropriate as a “starting point”. This was reduced to £1.75 million to take into account the early plea of guilty. He added that he looked at the level of fine “through the prism of the pre-guideline Scottish decisions” and, apart from the level, which was higher in the Guideline, he considered that he took into account the factors which had been considered relevant in the Scottish cases.
Submissions
Appellants
[26] The first ground of appeal was that the sheriff had erred in applying the 2015 Guideline. Instead, in line with the plea-in-mitigation made, he ought to have followed the guidance set out by the High Court in Scottish Sea Farms v HM Advocate (supra); Dundee Cold Stores v HM Advocate (supra); HM Advocate v Munro & Sons (Highland) (supra); and HM Advocate v Discovery Homes (Scotland) (supra). The second ground, which was ancillary to the first, was that the Guideline was mechanistic and formulaic. It was inconsistent with the discretionary nature of sentencing in Scotland. Application of the guideline was apt to interfere with the proper exercise of judicial discretion (HM Advocate v Graham 2011 JC 1). The court had warned against the dangers of applying guidelines from England and Wales too rigidly, particularly having regard to the existence of a different sentencing regime in Scotland (Milligan v HM Advocate 2015 SCL 984). Guidelines involved a rigid or mechanistic approach not appropriate in Scotland, given the differences in sentencing purposes, practices and regimes between the two jurisdictions (Sutherland v HM Advocate 2016 SCCR 41). Although the 2010 Guideline had been adopted in part in a number of cases, including Scottish Sea Farms (supra), it did not follow that the 2015 Guideline, which vastly increased the level of fines, should automatically be followed in Scotland.
[27] The 2015 Guideline was retroactive in effect. It prescribed a mechanistic and formulaic approach. The 2010 Guideline had not accepted that the level of fine should be fixed by reference to turnover or profit. The 2015 Guideline was complex and sometimes confusing. There was a potential for double counting. Although tariffs were set for companies with a turnover up to £50 million, there was virtually no guidance on the nature of any uplift for “very large organisations”. In England, it was routine for the Crown to produce a schedule on the question of sentencing and for a response to be made by the defence (R v Friskies Petcare (UK) (2002) 2 Cr App R (S) 401). Such involvement was contrary to the neutral position of the Crown on questions of sentence. Proofs in mitigation were relatively commonplace in England (R v Newton (1983) 77 Crim App R 13). That was in contrast to the Scottish position where they were seldom required. It was usually possible to agree the mitigatory and aggravating factors. The absence of appeals in Scotland was testimony to the consistency in the Scottish sentencing regime. This had enabled legal advisers to provide advice with a degree of confidence. These aspects of Scottish practice were important to the efficiency of the system. The flexibility in the Scottish approach was to be preferred (see eg HM Advocate v Svitzer Marine, unreported, Lord Turnbull, 13 November 2015). The Crown had not sought the application of the 2015 Guideline, although they had brought it to the court’s attention.
[28] The third ground of appeal was that, in any event, the sheriff had misapplied the 2015 Guideline. He miscategorised the offence as falling into the “high culpability” category and in assessing the likelihood of harm as “high”. He had therefore reached an inappropriate sentencing range. Having selected a starting point of £2.5 million, he had failed to modify that under reference to the mitigatory features. He had failed to have sufficient regard to the sophisticated management structures which the appellants had in place to ensure the safety of a large workforce, consisting of 434 employees and contractors, who were operating in inherently dangerous circumstances. The risks were controlled by a highly developed health and safety management system. The competence of those responsible for that system had been demonstrated by the absence of previous convictions and a good safety record. This included the maintenance of plant, including valves.
[29] This had been one of 280 similar valves. The system in place had not been impugned by the Crown. The sheriff had failed to conclude that the breach was localised and out of character. The appellants had pled to a failure to have in place an adequate system and not to failing to have any system in place. The breach more properly fell to be regarded as one of medium culpability, to the effect that systems had been in place but had not been sufficiently adhered to or implemented. In relation to the category of risk, the valve was not one in frequent use. It did not require to be in operation as part of the ordinary functioning of the plant. The number of persons trained to use it was restricted to a small group. The likelihood of harm was therefore low.
[30] The fourth ground was that, in all the circumstances, the sheriff, having accepted that there were no aggravating factors present and that all of the recognised mitigating factors were present, had selected a starting point of £2.5 million which was excessive.
Respondents
[31] The respondents maintained that the broad principles set out in the 2015 Guideline were not new and repeated much of what had been contained in the 2010 Guideline, which the court had already stated could be noticed for the purposes of sentencing in Scotland. Nevertheless, the specific figures in the tables were not helpful for the Scottish sentencer. The guidance from existing Scottish case law remained extant.
[32] As a generality, guidelines produced by the Sentencing Council were usually of assistance in Scotland. The purpose of sentencing for offences was universal. The objective was the same, namely punishment, retribution, deterrence and rehabilitation. It was desirable that there should be consistency in sentences throughout the different jurisdictions of the United Kingdom. The 2015 Guideline was particularly relevant where, as here, the offence was a statutory one common to both jurisdictions.
[33] Sentencing Council Guidelines were often applied in other cases where the law was governed by UK statutes such as causing death by driving (Neill v HM Advocate [2014] HCJAC 67; HM Advocate v McCourt 2014 JC 94; and HM Advocate v McKeever [2016] SCL 564) and in indecent images cases (HM Advocate v Graham 2011 JC 1). The guidelines have been described as providing a useful crosscheck for sentences in Scotland (Sutherland v HM Advocate (supra)) even if the court has repeatedly warned against too rigid an adherence to them and their application in a mechanistic fashion. That did not prevent them being considered where they were helpful.
[34] In health and safety cases, the court had recognised the value of the 2010 Guideline (Scottish Sea Farms Ltd v HM Advocate (supra)). Although the 2015 Guideline introduced tables, which set out ranges of fines to be imposed and in that way could be described as mechanistic and formulaic, apart from that innovation, the broad principles repeated those of the earlier edition. There was nothing within the criteria said to be relevant in the Guideline which would not be considered relevant to a sentencer in Scotland. As was said in Dundee Cold Stores v HM Advocate (supra), in cases involving breaches of health and safety regulations, the court had to assess: first, the seriousness of the breach; secondly, the aggravating and mitigating factors; and, finally, the financial position of the offending company. The authoritative statement, detailing the purpose of fining a corporate entity, was that any fine should reflect the means of the offender, but should not be said to stand in any specific proportion to turnover or profit (Scottish Sea Farms Ltd v HM Advocate (supra)). The objective ought to be to achieve a safe environment for the public and bring that message home, not only to those who manage a corporate offender, but also to those who are its shareholders.
Decision
[35] The focus in the appeal was primarily on the applicability of the 2015 Guideline from the Sentencing Council of England and Wales. The court has, on several occasions, encouraged sentencers to “have regard to” guidelines from south of the border in appropriate cases, notably, but not exclusively, those involving United Kingdom statutory offences. In Geddes v HM Advocate 2015 SCCR 230, for example, it was said (LJC (Carloway) at para [18]) that:
“while the court has encouraged sentencing judges to ‘have regard’ to the English Guideline in death by dangerous driving cases, it has not said that it should be interpreted and applied in a mechanistic way (Neill v HM Advocate [2014] HCJAC 67, Lady Clark at para [11]). In order to ensure a degree of consistency in this jurisdiction, albeit paying due regard to local circumstances, it may be equally important to have regard to existing precedent”.
There is no reason to depart from that approach in this case. However, although with many types of offence, sentencing decisions will be “instantaneous, if not quite instinctive ... once the material is ingathered and understood” (Ferguson v HM Advocate 2014 SCCR 244, LJC (Carloway) at para [103] citing Gemmell v HM Advocate 2012 JC 223, LJC (Gill) at para [59]), guidelines from the Sentencing Council will often provide a useful cross check, especially where the offences are regulated by a UK statute (Sutherland v HM Advocate 2016 SLT 93, LJC (Carloway) at para [20]).
[36] There are over 200 High Court full or part-time judges and sheriffs, each one of whom may be called upon to fine corporations for serious breaches of health and safety regulations. They will have varying degrees of experience in the selection of the appropriate fine. The contention from the appellants that Scotland represents a sentencing idyll, in which the courts have created a model of consistency universally admired by legal professionals specialising in the regulatory field, is not one which is immediately accepted. Guidelines on sentencing, whether in the form of an Opinion from the High Court (Criminal Procedure (Scotland) Act 1995, ss 118(7) or 189(7)) or other approved source, can be helpful in achieving consistency, especially in fields not routinely encountered in the criminal courts.
[37] In relation to the 2015 Guideline, there is no need to use it in a mechanistic or formulaic fashion. As will be seen, if, in this case, the sheriff was correct in identifying the levels of culpability and harm, the product is a broad range of between £550,000 and £2.9m, within which to work applying discretionary increases or decreases to or from the starting point of £1.1m according to, respectively, any aggravating and mitigatory factors. Even then, having reached a figure at the end of that calculation, there remains the proportionality exercise based upon the offender’s turnover. In such circumstances, describing the Guideline in pejorative terms relative to the generally looser Scottish approach to sentences is misplaced. Similarly, the somewhat startling submission, that the use of guidelines of the type under consideration here is productive of inconsistency and inefficiency, is simply not accepted.
[38] As was pointed out in Geddes (supra), it is important to look at existing Scottish precedent to discover what levels of penalty are appropriate, albeit that this task may involve a cross check with any relevant guidelines. In the regulatory field, despite its relatively recent date, HM Advocate v Munro & Sons (Highland) 2009 SCCR 265 was said (Lord Nimmo Smith at para [22]) to have been the first case in Scotland in which the principles, to be applied in determining the level of fine for causing death as a result of a breach of section 3 of the Health and Safety at Work etc Act 1974 (employers duty to non employees), were scrutinised in any depth. However, that is not to say that there were no prior instances in which fines had been levied. Those reported in brief in Green’s Weekly Digest from the 1990s, reflect the perception, noted by the Sentencing Council, that fines were being set at remarkably low levels, even in cases involving death. Some of these point to a regime in which the High Court was restricting fines which sheriffs considered appropriate. For example, in Tate and Lyle Sugars v HM Advocate 1991 GWD 8-471, a fine of £250,000 was reduced to £100,000 having regard to the levels of fine in England. The court looked at the profits of the appellants but considered that the sheriff had erred in taking into account the turnover of the group of companies of which they were a part. In Balmoral Group v HM Advocate 1996 GWD 10-581, a fine of £100,000 was reduced to £35,000. By the 2000s, the perception at first instance must have remained that these levels were too low. In HM Advocate v BP Oil Grangemouth Refinery 2002 GWD 5-160, two BP subsidiaries were fined a total of £1m by a sheriff in respect of a non-fatal (indeed non-injury) incident involving the leak of highly inflammable liquid or vapour from a fractured pipeline caused by over pressurisation. This does not seem to have been appealed.
[39] In Munro & Sons, the court noted HM Advocate v Transco, unreported, Lord Carloway, 25 August 2005, in which a fine of £15m had been levied on a utility company whose defective gas pipe had caused the deaths of an entire family. The court in Munro & Sons was considering an appeal against fines imposed by the High Court upon a family company (with a turnover of about £2m) of only £3,750 (discounted from £5,000) for a breach causing the death of one person and serious injury to another. The respondents had pled financial hardship relative to a fine of, say, £50,000. The court analysed the respondents’ financial situation before increasing the fine to £30,000 (discounted from £40,000).
[40] The court in Munro & Sons cited with approval the approach of the Court of Appeal in R v Balfour Beatty Infrastructure Services [2007] 1 Cr App R (S) 65 (p 370), in which Lord Phillips CJ cited (at para [22]), with approval, the judge at first instance’s summary of principles derived from F Howe and Son (Engineering) (1999) 2 Cr App R (S) 37m including a view that, historically, fines for breaches of section 3 had been “too low”. Although it was not possible to say that a fine should stand in any specific relationship with turnover or net profit, the objective ought to be “to achieve a safe environment for the public and bring that message home, not only to those who manage a corporate defendant, but also to those who own it as shareholders”. That generality apart, the court identified a number of relevant factors to be used in determining the level of fine, including specific mitigatory and aggravating elements. Interestingly, Lord Phillips approved of a comment that consistency may not be a primary aim of sentencing in this area because of, it seems, the different levels of turnover and the desire to achieve proportionality.
[41] Returning to the relationship of the fine to turnover, Lord Nimmo Smith in Munro & Sons quoted Lord Phillips’ remark (at para 42) that:
“Knowledge that breach of this duty can result in a fine of sufficient size to impact on shareholders will provide a powerful incentive for management to comply with this duty. That is not to say that the fine must always be large enough to affect dividends or share price. But the fine must reflect both the degree of fault and the consequences so as to raise appropriate concern on the part of shareholders at what has occurred”.
The reference to consequences is significant in distinguishing between cases where no injury has occurred, those where serious injury has resulted and those involving fatality.
[42] Munro & Sons was followed by HM Advocate v Discovery Homes (Scotland) 2010 SCCR 765, involving a fatal accident to an employee of a small building firm (£2.9m turnover) and a breach of section 2 of the 1974 Act. The ability of the respondents to pay a substantial fine was in issue. The court, which increased the £5,000 fine (discounted from £7,500) imposed by the sheriff, to one of £40,000 (£60,000) noticed the 2010 Guideline and stated (LJG (Hamilton) at para [17]) that, notwithstanding that it only had statutory effect in England and Wales, the Guideline would “no doubt, in the future be noticed for the purposes of sentencing on like offences in Scotland”. However, since the Guideline post-dated the offence, it had to be disregarded. Its preceding consultation paper had emphasised the need to base any fine on turnover, but the court declined to follow that approach since neither party had advocated it. The court nevertheless noted the material increases in fines for this category of offending, illustrated in L H Access Technology v HM Advocate 2009 SCCR 280, which was again a fatal case, in which fines of £240,000 (discounted from £300,000) were imposed on companies with turnovers of between £2.7m and £3.7m. In each case, the financial position of the companies was an important factor in determining the level.
[43] Discovery Homes (Scotland) had made it clear that the High Court expected sentencers to take note of the 2010 Guideline. The matter was revisited in Scottish Sea Farms v HM Advocate 2012 SLT 299. This involved a double fatality, with two employees having been suffocated, and two others being injured. The High Court reduced the fine from £600,000 (discounted from £900,000) to £333,335 (£500,000). In doing, the court (Lady Dorrian at para [18]) followed Munro & Sons in its endorsement of the principles in Balfour Beatty Rail Infrastructure Services. In particular, the need to achieve a safe working environment and to bring that message home, not only to the management, but also to the shareholders, was emphasised. The court took the view that this approach was reflected in the 2010 Guideline. The relevant aggravating and mitigatory factors were set out in the Guideline which the courts in Scotland ought to notice.
[44] Fines of £135,000 (discounted from £200,000) and £66,000 (£100,000) which had been imposed by a sheriff were reduced to £50,000 (£75,000) and £44,000 (£66,000) in Dundee Cold Stores v HM Advocate 2012 SLT 1173. That was a non-fatal case, involving a severe injury to an employee who fell through a roof. According to the court (at para [24]), the sentencer must first assess the seriousness of the case, the consequences of the breach (especially fatality) being an important consideration. The initial assessment required to be adjusted under reference to any aggravating or mitigatory factors noted in Scottish Sea Farms and hence the 2010 Guideline. Finally, the financial position of the offender must be taken into account. In that regard, it is curious that the court in Dundee Cold Stores, whilst being highly critical of the sheriff, made little reference to the turnovers of the three companies concerned and the part they played in the sentencing exercise. As with several of the Scottish cases, it is a bit of a mystery how the substituted fine levels were arrived at other than by “instinctive synthesis” (Gemmell v HM Advocate (supra), LJC (Gill) at para [59], comparing Markarian v R (2006) 228 CLR 357).
[45] Returning to cases at first instance, in HM Advocate v Svitzer Marine, unreported, Lord Turnbull, 13 November 2013, a fine of £1,700,000 (reduced from £2,000,000) was imposed upon a subsidiary of the AP Moller-Maersk shipping conglomerate for a breach of section 2 of the 1974 Act, leading to the sinking of a tug carrying out towing operations on the Clyde. Three crewmen were drowned. The fine followed a section 76 plea, but the sentencing judge limited the level of discount because of the very large sums of money involved. Leave to appeal was refused at first and second sift.
[46] In relation to the appropriate level of fine, the recent Scottish cases illustrate that there is a significant difference between cases in which the offender is a relatively small company in terms of turnover (Munro & Sons, Discovery Homes (Scotland); L H Access Technology and possibly, Dundee Cold Stores) and those where the offender is, or is part of, a large corporation (BP Oil Grangemouth Refinery; Svitzer Marine; cf the much earlier Tate and Lyle Sugars). It may be said that Scottish Sea Farms involved a relatively low fine for a company with a large turnover (£94m) but it was decided before the 2015 Guideline. Having regard to these cases, and recognising also the significant difference between fatal and non-fatal cases, this court would have been considering a starting point (before any discount for an early plea of guilty) of about £1.5m in this case. That has regard to the serious nature of the breach, which the court analyses in much the same way as the sheriff, the mitigating circumstances, the serious injury to the employee, the absence of any fatality but then the fact that the appellants are part of a multi-national corporation.
[47] Returning therefore to the significance of the Guideline, where the court has said that regard should be had to guidelines in England and Wales in a particular field, such as UK health and safety regulation, it means to such Guidelines as are in current use and would be applied by the courts of England and Wales to the offence, had it happened in that jurisdiction. It would be bordering on the ridiculous to apply a Guideline which was out of date. Accordingly, the appropriate guideline to have regard to, as a cross check, in this case, is the 2015 version.
[48] The sheriff did have regard to the 2015 Guideline. Exactly how he did this is not entirely clear. He states, for example, that “Applying the guidelines” a particular figure and range is reached. The calculation which follows may be seen as an attempt to follow the numbered steps in the Guideline through to the final figure. In that respect, the sheriff’s attempt may be flawed. If the sheriff was applying the Guideline, once he had completed Step two (which he did), he ought to have identified the mitigatory and aggravating factors and adjusted the “starting point” up or down accordingly. This could not have involved moving “out of the range”, as the sheriff had contemplated. A figure ought to have been reached and only then could the Step three proportionality check relative to means have been carried out to adjust the figure. Such an exercise is not that described in the sheriff’s report.
[49] On the other hand, it may be that, having reached the initial Step two figure and range, the sheriff was just using it as a general cross-check on his ultimate selection of £2,5000,000 as a “starting point”, as those words are understood in Scottish sentencing practice and rather than a term of art in the Guideline. The problem with that perhaps generous analysis is that the sheriff does not explain how, looking through the prism of pre-guideline Scottish decisions, as he put it, he arrived at £2,500,000. Certainly, there is no precedent cited by him which would justify such a figure in a non-fatal case. As the sheriff recognises, in so far as the Guideline may be applied, it will produce a far higher level of fine than those in the Scottish cases cited to him. The reasoning of the sheriff is therefore, to this extent, uncertain.
[50] If the Guideline were used as a method of calculating the appropriate fine, the court, as already noted, would have reached the same figures as the sheriff by applying the “high” culpability factor and the Harm Category 2. The contentions to the contrary by the appellants are rejected. This produces a starting point of £1,100,000 and a range of £550,000 to £2,900,000. However, the court would then have to have regard to the low number of employees exposed. This would not have decreased the starting point figure. The fact that the offence was a significant cause of actual harm could have increased it and may even have moved the category to level 1, thus producing a starting point of £2,400,000 and a range commencing at £1,500,000. However, the mitigatory factors would have kept the figure to the lowest level of that range. If that range were not selected, although these factors would have reduced the figure from the starting point, the “very large” nature of the appellants’ parent group would, at Step three, have prompted a significant increase back to, and probably greater than, the starting point of £1,100,000 in order to meet the test of the fine being “sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation”.
[51] In short, using the 2015 Guideline as a cross check to the figure of £1,500,000, the sum selected as a “starting point” in conventional Scottish sentencing parlance, prior to a discount for the early plea, seems reasonable. In relation to that level of discount, the court has noted the approach of Lord Turnbull in Svitzer Marine that a full one-third discount would involve too substantial a sum of money relative to the total (see Gemmell v HM Advocate (supra), LJC (Gill) at para [74]). In Svitzer Marine the discount selected on a section 76 plea was 15% (of £2m). The fine here is lower, but approaching the matter in a similar way to Lord Turnbull, a discount at a slightly higher level of 20% would seem reasonable to reduce the starting point of £1.5m by £300,000 to produce a fine of £1,200,000.
[52] The appeal is accordingly allowed. The court will quash the figure of £1,750,000 and substitute one of £1,200,000.