Scottish Power Generation Ltd v. Her Majesty’s Advocate [2016] HCJAC 99

Note of appeal against sentence:- On 12 May 2016, at Dunfermline Sheriff Court, the appellants pled guilty by accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to contraventions of section 2(1) and 33(1)(a) of the Health and Safety at Work Act 1974 in that as a result of various health and safety breaches by the appellants an employee suffered severe injury, permanent disfigurement and permanent impairment. On 31 May 2016 the sheriff fined the appellants £1.75 million discounted from £2.5 million due to the early plea. The appellants appealed against the level of fine imposed. The sentencing sheriff had applied the ‘new’ 2015 Sentencing Council of England and Wales “Health and safety offences, corporate manslaughter and food safety and hygiene offences: Definitive Guideline” which replaced the Sentencing Guidelines Council, “Corporate Manslaughter & Health and Safety Offences Causing Death: Definitive Guideline” dated 2010. The 2015 Guideline, effective from 1 February 2016, 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 determining the offence category using the culpability and harm factors in the tables set out in the Guideline. Having determined the offence category the sentencer then requires to consider the set out starting points to reach a provisional sentence within the category range which is then adjusted in light of any aggravating or mitigating factors which are then taken into account (Step two). There are then various additional steps to allow a review and, if necessary, adjustment of the proposed sentence. In this case, the sheriff considered that the failures fell within the description of “high culpability” from the 2015 Guideline. Considering the turnover of the appellants, 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. The sheriff 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 had 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. On account of the plea by accelerated procedure this was reduced to £1.75 million. The sheriff noted 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 relevant factors which had been considered in the Scottish cases. It was submitted on behalf of the appellants that the sentencing sheriff should not have applied the 2015 Guideline and should instead have applied the guidance from the High Court as set out in HMA v Munro & Sons (Highland) 2009 SCCR 265, Scottish Seafarms v HMA 2012 SLT 299 and Dundee Cold Stores v HMA 2012 SLT 1173. It was further submitted that the application of the Guideline was too mechanistic and formulaic and that the Guideline was complex and confusing. It was submitted on behalf of the appellants that the 2015 Guideline only applied in England and Wales and the appropriate guidelines in Scotland were to be found in the High Court guidance. It was further submitted on behalf of the appellants that the sheriff had, in any event, misapplied the 2015 Guideline by miscategorising the offence as falling into the “high culpability” category and in assessing the likelihood of harm as “high” and he had failed to conclude that the breach was localised and out of character. It was further submitted that the sheriff having considered that there were no aggravating factors and that all the mitigating factors were present the starting point of £2.5million was excessive. On behalf of the Crown it was submitted that the broad principles of the 2015 Guideline were not new and simply repeated much of what was contained within the 2010 Guideline. It was further submitted that the Sentencing Council guidelines were usually of assistance in Scotland and it was desirable that there should be consistency in sentences throughout the different jurisdictions of the United Kingdom where the statutory offence was applicable in both jurisdictions. Here the court reiterated that, as it has done in the past, it will continue to have regard to the sentencing guidance of the Sentencing Council of England and Wales. The court considered that there is no need to use the 2015 Guideline in a mechanistic or formulaic way and the submission on behalf of the appellants that the use of such guidelines is productive of inconsistency and inefficiency was not accepted. The court considered that where, like in the present case, the sentencer identifies the levels of culpability and harm, in the broad range of between £550,000 and £2.9 million, within which to work applying discretionary increases or decreases to or from the starting point of £1.1 million according to any aggravating and mitigating factors there is flexibility. Having reached a figure at the end of that calculation there requires a proportionality exercise based upon the offender’s turnover. The court observed that recent Scottish cases illustrate that there is a significant difference between cases in which the offender is a small company in terms of turnover. Having regard to the recent Scottish cases and the significant differences between fatal and non-fatal breaches, the court considered a starting point of around £1.5 million due 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 with a significant turnover. The court considered that “it would be bordering on the ridiculous to apply a Guideline which was out of date” and it was appropriate to use the 2015 Guideline as a cross check. The court observed, however, that whilst the sheriff indicated that he had applied the 2015 Guideline it was not clear, in the absence of a clear calculation, of how he reached the level of fine he did. The court agreed with the sheriff by applying the “high” culpability factor and the Harm Category 2 and the submissions to the contrary by the appellants were rejected. The court chose a starting point of £1.1million and a range of £550,000 to £2.9 million, however, the court also had regard to the low number of employees exposed. The court considered that this would not have decreased the starting point figure, however, the fact that the offence was a significant cause of actual harm could have increased it and may have resulted in a move of category to level 1, producing a starting point of £2.4 million with a range commencing at £1.5 million. The court considered that the mitigating factors would have kept the figure to the lowest level of that range. If that range was not selected these factors would have reduced the figure from the starting point, however, the “very large” nature of the appellants’ parent group would, at Step three, have resulted in a significant increase probably resulting in a starting point greater than £1.1 million in order to meet the test of any 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”. The court considered that by using the 2015 Guideline as a cross check to the figure of £1.5 million the sum selected as a starting point prior to a discount was reasonable. In relation to the level of discount the court considered that a full one-third discount was too high relative to the total and a discount of 20% was considered appropriate thus reducing the starting point of £1.5 million by £300,000 to produce a fine of £1.2 million and the appeal was allowed to the extent of quashing the figure of £1.75 million and substituting £1.2 million.