Scottish Power Generation Ltd Appellants against HM Advocate Respondent
| Jurisdiction | Scotland |
| Judge | Lord Justice-General (Carloway),Lord Brodie,Lord Bracadale |
| Judgment Date | 03 November 2016 |
| Neutral Citation | 2016 SCCR 569 |
| Date | 03 November 2016 |
| Court | High Court of Justiciary |
| Docket Number | No 10 |
[2016] HCJAC 99
Lord Justice-General (Carloway),
Lord Brodie and
Lord Bracadale
Advocate (HM) v BP Oil Grangemouth Refinery Ltd 2002 GWD 5–160
Advocate (HM) v Discovery Homes (Scotland) Ltd [2010] HCJAC 47; 2010 SLT 1096; 2010 SCCR 765; 2010 SCL 1129
Advocate (HM) v Graham [2010] HCJAC 50; 2011 JC 1; 2010 SLT 715; 2010 SCCR 641; 2010 SCL 789
Advocate (HM) v McCourt [2013] HCJAC 114; 2014 JC 94; 2013 SLT 1081; 2013 SCL 991
Advocate (HM) v McKeever [2016] HCJAC 43; 2016 SCL 564; 2016 GWD 14–278
Advocate (HM) v Munro & Sons (Highland) Ltd [2009] HCJAC 10; 2009 SLT 233; 2009 SCCR 265; 2009 SCL 535
Advocate (HM) v Svitzer Marine Ltd HCJ, Lord Turnbull, 13 November 2015, unreported
Advocate (HM) v Transco HCJ, Lord Carloway, 25 August 2005, unreported
Balmoral Group Ltd v HM Advocate 1996 SLT 1230
Dundee Cold Stores Ltd v HM Advocate [2012] HCJAC 102; 2012 SLT 1173; 2012 SCL 1008
Ferguson v HM Advocate [2014] HCJAC 19; 2014 SLT 431; 2014 SCCR 244
Geddes v HM Advocate [2015] HCJAC 43; 2015 SLT 415; 2015 SCCR 230; 2015 SCL 629
Gemmell v HM Advocate [2011] HCJAC 129; 2012 JC 223; 2012 SLT 484; 2012 SCCR 176; 2012 SCL 385
LH Access Technology Ltd v HM Advocate [2009] HCJAC 11; 2009 SCCR 280; 2009 SCL 622; 2009 GWD 6–103
Markarian v R (2008) 228 CLR 357
Milligan v HM Advocate [2015] HCJAC 84; 2015 SCL 984; 2015 GWD 32–529
Neill v HM Advocate [2014] HCJAC 67; 2014 GWD 24–466
R v Balfour Beatty Rail Infrastructure Services Ltd [2006] EWCA Crim 1586; [2007] Bus LR 77; [2007] 1 Cr App R (S) 65; [2007] ICR 354
R v Friskies Petcare (UK) Ltd [2000] EWCA Crim 95; [2000] 2 Cr App R (S) 401
R v Howe (F) and Son (Engineers) Ltd [1998] EWCA Crim 3531; [1999] 2 All ER 249; [1999] 2 Cr App R (S) 37
R v Newton (1983) 77 Cr App R 13; [1982] 4 Cr App R (S) 388; [1983] Crim LR 198
Scottish Sea Farms Ltd v HM Advocate [2012] HCJAC 11; 2012 SLT 299; 2012 SCL 440
Sutherland v HM Advocate [2015] HCJAC 115; 2016 SLT 93; 2016 SCCR 41; 2016 SCL 233
Tate and Lyle Sugars Ltd v HM Advocate 1991 GWD 8–471
Sentencing Council, Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Definitive guideline (Sentencing Council, London, November 2015) (Online: http://www.sentencingcouncil.org.uk/wp-content/uploads/HS-offences-definitive-guideline-FINAL-web1.pdf (8 December 2016))
Sentencing Guidelines Council, Corporate Manslaughter and Health and Safety Offences Causing Death: Definitive guideline (Sentencing Guidelines Council, London, February 2010) (Online: http://www.sentencingcouncil.org.uk/wp-content/uploads/web__guideline_on_corporate_manslaughter_accessible.pdf (7 December 2016))
Justiciary — Sentence — Health and safety — Energy company fined £1.75 million for offence resulting in non-fatal injuries to an employee — Sheriff having regard to guideline produced by Sentencing Council in England and Wales — Whether appropriate to have regard to guideline — Whether correctly applied
Justiciary — Statutory offences — Health and safety — Energy company fined £1.75 million for offence resulting in non-fatal injuries to an employee — Sheriff having regard to guideline produced by Sentencing Council in England and Wales — Whether appropriate to have regard to guideline — Whether correctly applied
Scottish Power Generation ltd was charged in the sheriff court in Dunfermline on indictment at the instance of the Right Honourable Francis Mulholland QC, Her Majesty's Advocate, with a contravention of secs 2(1) and 33(1)(a) of the Health and Safety at Work etc Act 1974. On 12 May 2016, the appellant pled guilty to the charge libelled in accordance with the procedure under sec 76 of the Criminal Procedure (Scotland) Act 1995. On 31 May 2016, the sheriff fined the appellants £1.75 million, reduced from £2.5 million on account of the early plea. The appellants appealed against sentence to the High Court of Justiciary.
An employee of an energy company was severely injured by an emission of high temperature steam from pipework at a power station. The energy company was indicted, and pled guilty to, a contravention of secs 2(1) and 33(1)(a) of the Health and Safety at Work etc Act 1974 (cap 37) in respect of this incident. At the sentencing diet, the sheriff was provided with a copy of a guideline from 2015 produced by the Sentencing Council of England and Wales for, inter alia, health and safety offences. Having regard to the 2015 guideline, the sheriff considered the starting point was a fine of £2.5 million, which was reduced to £1.75 million to take account of the early plea. The energy company appealed against this sentence.
The energy company argued the sheriff had erred in having regard to the 2015 guideline. The sheriff ought only to have had regard to the guidance on sentencing for such offences contained in earlier Scottish cases. In any event, the guideline was mechanistic and formulaic, and inconsistent with the discretionary nature of Scottish sentencing practice. They were not appropriate for use in Scotland. In any event, it was argued the sheriff had misapplied the guideline and, in doing so, reached an inappropriate sentencing range. He had, also, failed to sufficiently modify the sentencing having regard to the various mitigatory features of the case. The Crown argued that the broad principles in the 2015 guideline were not new, although the specific figures in the guideline were not helpful for the Scottish sentencer. The guideline was a good cross-check even if the courts had previously warned against too rigid an adherence to them.
Held that: (1) there was no reason to depart from the approach in previous cases of encouraging sentencers to have regard to guidelines produced by the Sentencing Council of England and Wales; the guidelines will often provide a good cross-check, especially where offences are regulated by a UK statute (para 35); (2) there was no need to use the 2015 guideline in a mechanistic or formulaic fashion and it was not accepted that use of the guideline was productive of inconsistency and inefficiency; it was important to look at existing Scottish precedent to discover what levels of penalty were appropriate, albeit this task may involve a cross-check with the guideline (paras 36–38); (3) the recent Scottish cases illustrated a difference of approach between relatively small companies and large corporations in terms of turnover, and having regard to these cases the court would have considered a starting point of £1.5 million in the present case (paras 40–46); (4) the sheriff had had regard to the 2015 guideline, although it was not entirely clear how he had done so; the reasoning was to that extent uncertain; the court would still have reached the same sentencing range as the sheriff; but if the relevant mitigatory factors and means of the energy company were taken into account this produced a figure that was probably greater than £1.1 million; in short, using the guideline as a cross-check, the figure of £1.5 million seemed reasonable (paras 48–51); (5) in relation to the discount, the approach in HM Advocate v Svitzer Marine Ltd that a full one-third discount involved too substantial a sum relative to the total was noted; approaching the present case in a similar manner, a discount of 20 per cent seemed reasonable (para 51); and appeal allowed with a fine of £1.2 million being substituted.
HM Advocate v Munro & Sons (Highland) Ltd 2009 SLT 233,
HM Advocate v Discovery Homes (Scotland) Ltd 2010 SLT 1096,
Scottish Sea Farms Ltd v HM Advocate 2012 SLT 299 and
Dundee Cold Stores Ltd v HM Advocate 2012 SLT 1173 commented upon and
HM Advocate v Svitzer Marine Ltd unreported and
Geddes v HM Advocate 2015 SLT 415 affirmed.
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Carloway), Lord Brodie and Lord Bracadale, for a hearing, on 19 October 2016.
At advising, on 3 November 2016, the opinion of the Court was delivered by the Lord Justice-General (Carloway)—
Opinion of the Court—
[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.
[2] On 12 May 2016, at the sheriff court in Dunfermline, the appellants pled guilty, under the procedure permitted by sec 76 of the Criminal Procedure (Scotland) Act 1995 (cap 46), to a charge which libelled that:
‘[B]etween 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...
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