A rise in health and safety fines in Scotland?

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In a recent ruling the Criminal Appeal Court in Scotland determined that Scottish Courts should fix penalties for health and safety offences by reference to not only existing Scottish case-law, but also the new 2015 sentencing guidelines of England and Wales. This is the first appellate judgment on this point and could pave the way for a substantial increase in the level of health and safety fines in Scotland.

The background 

The Sentencing Council of England and Wales issues guidelines to judges for the sentencing of health and safety offences. These guidelines must be applied by the courts in England and Wales but they aren't binding in Scotland. Historically, the Scottish courts have taken the view that they may take notice of the guidelines for the purpose of sentencing similar cases in Scotland. 

In November 2015 the Sentencing Council of England and Wales issued new guidelines for health and safety offences. The principal aim of the new guidelines was to increase consistency in sentencing in light of the increased fining powers acquired by magistrates in England and Wales under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The guidelines also cover non-fatal cases and vastly increase the level of fines which, for the first time, are linked to the turnover of the company in breach. 

The case 

In the recent appeal against sentence by Scottish Power Generation Limited, the Criminal Appeal Court considered the applicability of the new guidelines in Scotland. The case involved a prosecution following an accident at a power station in 2014 when an employee was injured following the escape of high pressure steam due to a faulty valve. The Sheriff had applied the 2015 guidelines during the sentencing process and imposed a fine of £1.75M. The company appealed the sentence. Of note, it was argued that the 2015 Guidelines, which vastly increased the level of fine, should not automatically be followed in Scotland. 

The appeal judges decided unanimously that the sheriff was right to have regard to the new 2015 England and Wales sentencing guidelines. They considered that that guidelines provide a useful "cross-check" for Scottish sentencing judges especially where the offence is regulated by a UK statute, such as the Health and Safety Act 1974. However the court also considered that the guidelines should not be "interpreted and applied in a mechanistic way" and that it was equally important for the court to have regard to Scottish case-law to discover what levels of penalty are appropriate. 

In terms of the fine fixed by the sheriff, the judges considered that whilst the sheriff did have regard to the 2015 guidelines, it was not clear how he had applied them. They took the view that a lower fine would be appropriate considering the Scottish case-law and cross-checking against the England and Wales sentencing guidelines. They substituted a fine of £1.2M for the fine fixed by the sheriff. 

The implications 

The judgement clarifies the status of the 2015 England and Wales sentencing guidelines in Scotland. Although they are not binding on Scottish courts they are relevant, along with Scottish case-law, in determining the appropriate penalty in health and safety cases. However it is not clear what approach the court will take where the level of fine under Scottish case-law and the guidelines is markedly different. 

The 2015 guidelines are also silent as to the "discount on sentence" which will be applied where a guilty plea is tendered. Previously, a discount of one third has generally been applied where the accused pleads guilty at an early stage. However, in this case the judges considered that in taking account of an early guilty plea, it would prefer to arrive at a reduced sum rather than simply apply a percentage reduction. This suggests some uncertainty about the appropriate level of discount for an early guilty plea going forward. 

Finally, the application of the guidelines in Scotland is likely to put significant upward pressure on the level of health and safety fines in Scotland. Notwithstanding the £0.55M reduction in this case, the fine still represents one of the highest fines imposed in Scotland in a non-fatal case. With higher levels of sentence on the horizon, companies should be fully advised of their potential liability for health and safety offences in the future. 

A link to the judgment can be found here