Last week the appeal court in Scotland indicated that it is prepared to use the Definitive Guideline of the Sentencing Guidelines Council in England on Corporate Manslaughter and Health and Safety Offences Causing Death to assist in Scottish health and safety cases, pointing out that the aggravating and mitigating factors in those guidelines may also be relevant in cases not involving a death.
The case, Scottish Sea Farms limited and Logan Inglis v HM Advocate limited involved appeals against the sentences handed down by the Sheriff in Oban following a plea of guilty under section 76 in a case following a double fatality. The first company had been fined £600,000 and the second company, which was smaller and whose actions were not linked the fatality, was fined £40,000.
The appeal court referred to the cases of HM Advocate v Munro and HM Advocate v Discovery Homes but the appeal court had not used the Guidelines as both involved accidents which took place before the Definitive Guidelines were published, although the appeal court did take into account the proposed Guidelines in the sentencing appeal of LH Access v HM Advocate. These cases marked a change in judicial thought as the Definitive Guidelines, once published, were thereafter applied as being ‘of assistance’ in courts throughout Scotland. The Sea Farms case is the most recent appeal court decision in which the Guidelines have been formally and unequivocally applied and recognised as of note in cases where a death is not involved.
In the Sea Farms case the court indicated that the following aggravating factors could have applied:
(a) more than one death, or very grave personal injury in addition to death;
(b) failure to heed warnings or advice;
(c) cost-cutting at the expense of safety;
(d) deliberate failure to obtain or comply with relevant licences; and
(e) injury to vulnerable persons.
But that only the first aggravating factor did apply and that all of the relevant mitigating factors did apply as follows:
(a) a prompt acceptance of responsibility;
(b) a high level of co-operation with the investigation, beyond that which will always be expected;
(c) genuine efforts to remedy the defect;
(d) a good health and safety record;
(e) a responsible attitude to health and safety, such as the commissioning of expert advice or the consultation of employees or others affected by the organisation's activities.
This case is of interest. The court described the breach as an “honest failure by a company with a good record and a responsible attitude towards Health and Safety”. The breach of the first company was serious and was a significant cause of the death of two employees and serious injury to a third but due to the mitigating factors present, the appeal court imposed a fine of £333,335.
In relation to the second appellants, the court took in to account the Definitive Guidance and the “effect on the employment of the innocent” and they accepted that the imposition of a £40,000 fine may result in redundancies and due to all the other mitigating factors the fine was reduced to £20,000.
Contact: Laura Irvine