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SENTENCING IN HEALTH AND SAFETY PROSECUTIONS

Appeal against sentence in Scotland highlights importance of submission detail 

Solicitors Morton Fraser have highlighted the recent case of Scottish Sea Farms Ltd and Logan Inglis Ltd v Her Majesty’s Advocate. The two companies successfully appealed to the High Court of Justiciary to have fines of £600,000 and £40,000 reduced. The fines were reduced to £333,335 and £30,000 rspectively.

This case shows that full submissions by prosecution and defence should be made at the point of sentencing to highlight all mitigating and aggravating factors identified in relevant sentencing guidelines. The Court should also be presented with sufficient information about defendant finances.

The article is reporoduced in full below:

Article

In the recent case of Scottish Sea Farms Ltd and Logan Inglis Ltd v Her Majesty’s Advocate, two companies appealed to the High Court of Justiciary seeking to have fines (imposed as a result of health & safety breaches) reduced.

In this case Scottish Sea Farms (SSF) owned a barge that was moored at one of their sea farms. Below deck there are several chambers, along with the electrical equipment for a hydraulic crane which runs on deck. A task was to be undertaken by two SSF employees and an engineer from Logan Inglis (LI). Two hatches allowing access to the chambers were opened. The employees entered and exited the first chamber without incident. On opening the second chamber there was a hissing sound. As a result it was decided to leave the chamber open for a while to vent before entering.

As a result of the attempts to enter the second chamber two SSF employees collapsed and a third (attempting a rescue) also experienced difficulties. Tragically two of those employees died. The engineer employed by LI had also attempted to descend into the chamber but came back up very quickly when he began to feel dizzy and unwell.

An investigation disclosed that the oxygen level in the chamber was 13% compared to the normal concentration in air of 20.9%. Loss of consciousness and death can result from concentrations below 16%. The effects of such a reduced oxygen level are extremely rapid and will generally come with no warning to alert the senses.

The charge against SSF alleged that they failed to make a suitable and sufficient assessment of the risks to health & safety and in particular failed to identify the presence of risk associated with confined spaces; that they failed to provide sufficient information, instruction and training in relation to working in confined spaces and that they failed to provide plant and a system of work to ensure the safety of employees entering confined spaces and the associated rescue procedures. As a result of the failures their employees entered the confined space – with fatal consequences.

The charge against LI alleged that they failed to make a suitable and sufficient risk assessment in respect of the presence of confined spaces and failed to provide information, instruction and training. As a result their employee was exposed to a risk of death.

Both companies plead guilty and at the hearing to assess the level of fine SSF argued in mitigation that they had a good health & safety record, they took health & safety seriously, they had for some time engaged a private company to assist them in meeting their obligations, that health & safety training was generally of a high standard, that they actively participated in health & safety forums within their trade and following the incident they had provided all employees with training never to enter a confined space.

LI also relied in mitigation upon the instruction of an outside agency for advice. They explained that they had taken steps following the incident to put all field engineers through confined space training and withdrew from work involving confined spaces. LI also argued that they were less culpable than SSF. The charges made it clear that they were not to be held responsible for any of the deaths.

Perhaps most interestingly LI put forward arguments that the Sheriff should take into account the adverse effects of the current economic climate that had caused a downturn in work. They explained that they were doing their best to avoid further redundancies having already reduced their staff by 25% despite having suffered a reduction of 35% in turnover.

Based upon the submissions made in mitigation the Sheriff fined SSF £900,000 (reduced to £600,000 to reflect an early guilty plea) and LI were fined £60,000 (reduced to £40,000 for the same reason).

Both companies appealed and argued that the sentences were excessive. In making its decision the appeal court provided a helpful review of the approach to sentencing in health & safety cases. The court reaffirmed that the decision in HMA v Munro sets out the relevant considerations as follows:

  1. “where death occurs as an consequence of the breach, that is an aggravating feature, multiple deaths being viewed even more seriously than single deaths.
  2. a breach with a view to profit is a serious aggravation.
  3. the degree of risk and extent of the danger and in particular whether this was an isolated incident or one continued over a period.
  4. mitigation will include (1) a prompt admission of responsibility; (2) steps taken to remedy deficiencies; and (3) a good safety record.
  5. the resources of the offender and the effect of a fine on its business are important. Any fine should reflect the means of the offender but could not be said to stand in any specific proportion to turnover or profit. The objective of the fine should 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 own it as shareholders.”

The court also acknowledge that it is appropriate for the Scottish courts to look to the sentencing guidelines produced in England and Wales in respect of corporate manslaughter and health & safety offences causing death. The guidelines accord with the Munro case and set out the aggravating and mitigating factors to be taken into account.

Aggravating factors include:

  • more than one death, or very grave personal injury in addition to death;
  • failure to heed warnings or advice;
  • cost-cutting at the expense of safety;
  • deliberate failure to obtain or comply with relevant licences; and
  • injury to vulnerable persons

Mitigating factors include:

  • a prompt acceptance of responsibility;
  • a high level of co-operation with the investigation, beyond that which will always be expected;
  • genuine efforts to remedy the defect;
  • a good health and safety record;
  • 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.

The appeal court took the view that the first aggravating factor applied to SSF but none of the others did, that none of the aggravating factors applied to LI and all of the mitigating factors applied to both companies.

The appeal court accepted that the Sheriff had not fully explained how he had applied the factors to this case and as a result it was open to them to review the fines.

They started by pointing out that the breach to which SSF had plead guilty was a very serious one. The court acknowledged all of the mitigating factors and reduced the fine to £500,000. Taking into account the early guilty plea that resulted in a fine of £333,335 being payable.

With regard to LI the court again took into account the mitigating factors and they accepted that the offence to which they had plead guilty was a less serious one.

An interesting discussion followed about the financial standing of the company. The court had been advised about the consequences of a downturn in work and on the basis of that information the court was persuaded that whilst the original fine of £40,000 would not put the company out of work it would increase the risk of redundancies. The court confirmed that this is a relevant consideration when assessing the level of fine and with that (plus the mitigating factors) in mind the fine was reduced to £30,000 with £20,000 being payable as a result of the early guilty plea.

This case reinforces the importance of making full submissions at the point of sentencing to highlight all mitigating factors and to draw specific attention to the absence of aggravating factors. Perhaps more importantly it demonstrates the need to present the court with sufficient information about the company finances to avoid fines being imposed at a level that might put a company at risk of going out of business and to prevent innocent employees from suffering as a result.

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