Note Of Appeal Against Sentence By Scottish Power Generation Ltd Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Brodie,Lord Bracadale |
| Neutral Citation | [2016] HCJAC 99 |
| Court | High Court of Justiciary |
| Date | 03 November 2016 |
| Docket Number | HCA/2016 |
| Published date | 03 November 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 99
HCA/2016/294/XC
Lord Justice General
Lord Brodie
Lord Bracadale
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL AGAINST SENTENCE
by
SCOTTISH POWER GENERATION LTD
Appellants
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Gray QC, BT Smith; Pinsent Masons LLP, Glasgow
Respondent: Brown QC AD; the Crown Agent
3 November 2016
Introduction
[1] This appeal concerns the level of fine which is appropriate in respect of breaches of health and safety regulations by a very large corporation. It raises the issue of the extent, if any, to which the Scottish Courts should have regard to guidelines produced by the Sentencing Council of England and Wales.
General
[2] On 12 May 2016, at the Sheriff Court in Dunfermline, the appellants pled guilty, under the procedure permitted by section 76 of the Criminal Procedure (Scotland) Act 1995, to a charge which libelled that:
“between 1 March ... and 12 October 2013 ... at Longannet Power Station ... you ... being an employer, and having a duty ... to ensure ... the health, safety and welfare at work of your employees, and ... in particular a duty to ensure ... that work equipment was maintained in an efficient state, in efficient working order and in good repair, did fail to ensure ... the health and safety at work of your employees who were required to conduct plant checks within Unit 4 ..., a task which required them to access an area in close proximity to leak off pipework which ... incorporated a valve which could be manually opened and closed, ... the valve having been identified by you as faulty in that it was missing an index plate designed to limit the rotation of the hand wheel which opened and closed it, and you did fail to provide and maintain plant and a system of work that were ... safe and without risks to the health of ... employees ... in that you failed to ensure that the valve was maintained in an efficient state, in efficient working order and in good repair and failed to have a system in place to adequately manage and monitor the status of the valve after it had been identified by you as faulty ...
and in consequence thereof, on 12 October 2013, David Roscoe, your employee, was conducting routine plant checks within ... Unit 4, when he observed steam emitting from pipework ... being connected to the valve, and turned the valve to close it, whereupon he was engulfed in high-pressure high-temperature steam to his severe injury, permanent disfigurement and permanent impairment;
CONTRARY to section 2(1) and section 33(1)(a) of the Health and Safety at Work Act 1974.”
[3] On 31 May 2016 the sheriff fined the appellants £1,750,000, reduced for the early plea from £2,500,000.
Facts
[4] The accident involved a faulty valve installed in pipework through which high-pressure, high-temperature steam passed. The valve was in the basement area of one of four generating plants. The area was little used by personnel. The valve, which was operated by manually turning a spoked wheel, had been installed in about September 2007, when it had been given a certificate of test and compliance. On 6 May 2009, it was identified as having a fault. An index plate and mechanical stop, which prevented the wheel rotating back through from the closed position to open, were missing. It was apparently not known by the appellants whether the valve had been installed without this plate and stop or whether they had been removed later. The fault was registered and the appropriate work order for a repair was issued.
[5] Steps were taken to prevent the valve being operated meantime. A padlock was placed on it. The only key to that was kept in the permit office. It had a label attached to it, known as a “red peril” label. The key required to be signed out before it could be removed.
[6] The repair order was cancelled on 7 November 2011 by a mechanical workshop engineer. The reasons for this are apparently also unknown to the appellants. The valve had not been repaired.
[7] The padlock was last seen in March 2013, when certain work was carried out on the system. Sometime after that, it had been removed. The appellants have no record of who removed it, and hence who took the key from the permit office, nor when that had happened.
[8] On 27 September 2013, steam was noticed coming from the valve. A work order for the valve to be cut out and replaced was raised, but the contractor doing this did not observe that the index plate was missing. The order stated that the work should be carried out within one to four weeks.
[9] On 12 October 2013, an employee of the appellants, namely David Roscoe, was conducting routine checks when he noticed steam coming from pipework associated with the valve. He turned the wheel in an attempt to close the valve. He was unaware of the fault. The valve turned through the closed position and into open mode. Mr Roscoe was immediately engulfed in high temperature steam under pressure. It was accepted that Mr Roscoe had been a good and conscientious employee. When he had attempted to close the valve, he was doing no more or less than that which he was employed to do.
[10] Mr Roscoe, who was aged 53, had managed to get away after a second or two. He went to an emergency shower located a short distance away. He was able to radio for help. Nevertheless, the front of his lower body and his legs were very badly burned. His arms and neck were also affected. He underwent five operations. Two skin grafts were required. He was an in-patient for four weeks. He has had, and continues to receive, out-patient treatment, including counselling for Post Traumatic Stress Disorder. He was medically retired in December 2015. His life has been significantly affected. His mobility has been impaired. He had previously been a keen swimmer, walker and canoeist. He has recently been able to return to swimming, but is self-conscious about his appearance. He will require to apply emollients for the rest of his life. He cannot expose his arms or legs to sunlight. He has permanent scarring, although this will fade to a degree in time.
The Guideline
[11] The Sentencing Council of England and Wales has, as one of its central purpose, the promotion of greater consistency in sentencing, whilst maintaining the independence of the judiciary. Its president is the Lord Chief Justice and its members include Lord Justices of Appeal, High Court and Circuit Court judges as well as legal professionals and others involved in the justice system. It produces sentencing guidelines after extensive public consultation.
[12] In 2010, the Council’s predecessor, namely the Sentencing Guidelines Council, had issued its Corporate Manslaughter & Health and Safety Offences Causing Death: Definitive Guideline. Clearly this was concerned only with fatal cases. It consisted of listings of factors which would make an offence more or less serious. Although it was said (p 5) in relation to fines, that “Smallness does not by itself mitigate, and largeness does not by itself aggravate”, size, in the sense of means, was relevant. The financial consequences of a fine required to be considered. There was very little actual guidance on the level of fines. It was said that they required to be punitive and sufficient to have an impact. An appropriate fine for corporate manslaughter ought seldom to be less than £500,000 and may be measured in millions of pounds. Where a breach of health and safety regulations resulting in death had occurred, the fine should seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.
[13] On 3 November 2015 the Sentencing Council published the “Health and safety offences, corporate manslaughter and food safety and hygiene offences: Definitive Guideline”. This is applicable in England and Wales to all sentences after 1 February 2016, notwithstanding the date of the offence. It was produced with a view to achieving greater consistency in this area of sentencing, when the level of offending was low and many judges had little experience in this area. This was all against a background in which there was a wide-spread view that the sentences imposed on large corporate offenders were far too low. The Guideline 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 each category, from which the sentencer can start calculating a provisional sentence. Further features of the offence or offender, which are regarded as aggravating or mitigatory factors, will be taken into account (Step two). There are then a number of other factors which may require a final adjustment to the level of fines.
[14] Step one concerns, first, a determination of the offence category by reference to culpability and harm factors set out in tables. “Very high” involves a deliberate breach or flagrant disregard of the law. “High” is either that the offender fell “far short” of the appropriate standard by, for example, allowing breaches to subsist over a period of time, or a “serious and/or systemic failure within the organisation to address risks”. Medium would include a situation where a system was in place, but it was not sufficiently adhered to or implemented. Secondly, Step one involves identification of a category based on the risk of harm created by the offence. This assessment requires a consideration of both the seriousness of the harm and the likelihood of that harm arising. Seriousness will be at Level B if the harm risked is physical or mental impairment which, whilst not involving lifelong dependency on third party care (Level A), has a substantial and long term effect on the victim’s ability to carry out day to day activities or on his or her ability to return to work. If the likelihood of harm is “high” then it will fit into Harm category 2. If it is medium, then...
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