June 12, 2017

June 12, 2017

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Health and Safety Sentencing in the UK: A Border Divide?

The Definitive Guideline for Health and Safety Offences, which came into force on 1 February 2016 (2015 Guideline), must be applied when sentencing cases in England and Wales. Being separate and distinct legal jurisdictions, the courts of Scotland and Northern Ireland are not bound to follow the 2015 Guideline.

Historically, Scottish courts have still recognised the relevance of the Sentencing Council’s (England and Wales) guidelines, including the Corporate Manslaughter & Health and Safety Offences Causing Death: Definitive Guideline 2010 (2010 Guideline). In the case of Scottish Sea Farms Ltd v HM Advocate 2012 HCJAC 11, it was held that although the “[2010] guidelines have statutory effect only for England and Wales [they] may be noticed for the purposes of sentencing similar cases in Scotland”, and both the aggravating and mitigating factors within the 2010 Guideline were considered. At the time it appeared that the 2010 Guideline had been adopted, at least in part, in Scotland. In the courts of Northern Ireland however, it is much more difficult to determine whether the 2015 Guideline has had an impact on the sentencing of health and safety cases. The Health and Safety Executive for Northern Ireland has published only four health and safety cases sentenced since April 2016, highlighting that the maximum a company has been fined since April 2016, in a Crown Court for a single health and safety offence under Northern Irish legislation, is £5,000. This appears extremely low, and indicates that there may be an emerging trend that while England, Wales and Scotland are following the Sentencing Council’s Definitive Guideline, Northern Ireland is not.

Recent Scotland Decisions 

The relevance of the 2015 Guideline was recently explored in two Scottish appeals court cases.

The first case involved an appeal against a sentence brought by Scottish Power Generation Limited, in Scotland’s High Court of Justiciary (2016 HCJAC 99) stemming from an accident at a power station, when an employee sustained life-changing burns. The Sheriff overseeing the case at the local Sheriff Court of Dunfermline, deemed it appropriate to apply the 2015 Guideline, under which a fine of £1.75M (reduced from £2.5M for an early guilty plea) was imposed. The Sheriff reported that he determined that he should “have regard to the [2015] guidelines” and that there was “no reason for the levels of fine to be different north and south of the border.”

Applying the 2015 Guideline, the Sheriff found that Scottish Power was a “very large” company (defined as one with a turnover that very greatly exceeds the threshold for large companies – £50M a year) and it was accepted by Scottish Power that it could pay any fine imposed. The Sheriff also used the 2015 Guideline to determine that the case was Harm Level B, Harm Category 2. He had considered the aggravating and mitigating features in the 2015 Guideline, and said that he had looked at the level of fine “through the prism of the pre-guideline Scottish decisions”, referring to a number of cases in which sentencing had been calculated in reference to the 2010 Guideline.

On appeal, the Sheriff Court of Dunfermline maintained that the 2015 Guideline was not dissimilar to the 2010 guideline, which the Scottish courts had previously considered when sentencing. It was argued that the Sentencing Council’s guidelines were generally of assistance in Scotland, and that consistency throughout the UK was desirable, due to the aims of sentencing being the same across the borders. The offence in this case was a statutory one common to both jurisdictions, making the 2015 Guideline particularly relevant. It was noted that Sentencing Council guidelines were often applied in other Scottish cases where the law was governed by UK statutes, such as causing death by driving (Neill v HM Advocate [2014] HCJAC 67). The Lord Justice General found that the Sheriff had been correct to “have regard” to the 2015 Guideline and considered that there was no need to depart from the previous approach taken by Scottish courts. It was held that the Sentencing Council’s guidelines acted as a useful “cross check” for sentencing in Scotland, especially for offences which are regulated by UK statute, such as the Health and Safety at Work etc. Act 1974. It was emphasised that that there was no need for the 2015 Guideline to be used in a “mechanistic and formulaic fashion” and that Scottish case law would still need to be considered, as had always been the case.

The appeal judges noted that, although the Sheriff had been correct in considering the 2015 Guideline, they could not establish how exactly he had applied them, and thought his “starting point” had been too high. They quashed the original fine of £1.75M and found a new “starting point” of £1.5M, which was calculated by considering both previous case law and the 2015 Guideline. They then applied a reduction for an early guilty plea but felt that one third was too high, and reduced this to a 20% reduction, producing a fine of £1.2M. That figure had “regard to the serious nature of the breach…, 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.” Therefore, although the Lord Justice General had agreed in principle with the Sherriff’s decision to utilise and “have regard” to the 2015 Guideline, a different approach in their application was taken by the High Court of Justiciary, which produced an overall reduction in the fine imposed by £550,000.

More recently, on 6 January 2017, the case of HMA v Craig Services & Access Limited, Donald Craig and J M Access Solutions Ltd was heard at Airdrie Sherriff Court. This was a case in which two companies and an individual were prosecuted for breaches of health and safety law in relation to a fatal accident involving a cherry picker.  During sentencing, Sheriff Petra Collins stated “I have also had regard to the 2015 Guideline from the Sentencing Council of England and Wales, and to the recent Scottish case of Scottish Power Generation Ltd v HMA [2016] HJAC 99, in which the Appeal Court comprehensively reviewed sentencing in this area of the law”.

Craig Services was fined a total of £61,000 and J M Access Solutions was fined £30,000. Both companies were considered “small companies” and that on the financial information available to the Court, there was no realistic prospect that any fine imposed would be paid by either company.  The Sheriff stated that the “fines I impose will serve to mark society’s condemnation of each company’s conduct, and may act as a deterrent to others.” The individual in this matter, Mr. Donald Craig, was sentenced to two years’ imprisonment, the maximum custodial sentenced available under the 2015 Guideline.

Scottish Power Generation and Craig Services & others, should therefore serve as a stark warning to companies and individuals in Scotland, that although the 2015 Guideline is not legally binding in Scottish courts, it appears unlikely they will be able to avoid the levels of fines imposed by it, by simply being north of the border.

Recent Northern Ireland Decisions 

There is clear disparity in the results being produced in Northern Ireland versus those in Scotland. For example, Burke Shipping Services Limited received a total fine of £15,000 for three offences relating to an incident that occurred in August 2015, in which three workers fell from height and sustained multiple fracture injuries. Burke Shipping Services Limited reported a turnover of £1m in 2015, and would therefore have been considered a “micro” company under the 2015 Definitive Guideline.  In England and Wales, a single offence of Medium Culpability, Harm Category 3 in this bracket, would produce a starting point fine of £14,000 (with a range of £6-25k).  It is therefore difficult to determine whether this company was fined with reference to the 2015 Guideline, as the level of fine sits within the range suggested.

However, Ready Egg Products Limited, whose 2015 accounts show a turnover of £40m in 2015, was fined only £7500 for three health and safety offences. This case involved a serious incident relating to an employee who lost all of the fingers on his right hand in a workplace accident in 2014.  Using a typical Medium Culpability, Harm Category 3 offence as an example, this company would have had a suggested starting point fine of £100,000 under the Definitive Guideline.

Although Northern Ireland’s Enforcement Guide states that unlimited fines can be imposed in the higher courts for most health and safety offences in Northern Ireland, it does not appear that Courts are adopting this approach as yet.

© Copyright 2017 Squire Patton Boggs (US) LLP

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About this Author

Associate

Laura is an associate in our Environmental, Safety & Health practice, based in our Manchester and Birmingham offices. Her particular expertise covers health, safety and environmental prosecutions. She has experience of corporate and gross negligence manslaughter, road traffic offences and trading standards, including attendance at PACE interviews and advocacy in the Magistrates’ and Coroners’ Courts.

Laura gained several distinctions in her LLM, including international dispute resolution, environmental law and law of the sea. She has worked...

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Rob Elvin, Squire Patton Boggs, Civil Claims Lawyer, Corporate Defense Attorney
Partner

Rob Elvin is the Managing Partner of our Manchester office. His particular expertise covers health, safety and environment (including nuisance, noise abatement, pollution, permit appeals and environmental warranty and civil claims), judicial review, corporate defence (including bribery and corruption, investigations and corporate manslaughter), inquest law, food hygiene and safety, transport law, including public inquiries in front of traffic commissioners, product safety, liability and recall and he is a solicitor-advocate. Rob also lectures on issues such as corporate manslaughter, product safety and defending all manner of regulatory prosecutions.

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