Scottish courts should have regard to the 2015 Guideline from the Sentencing Council for England & Wales, as well to Scottish case law, in setting penalties for offences by companies such as health and safety breaches, the Criminal Appeal Court has stated.

Three judges chaired by the Lord Justice General, Lord Carloway, made the comments in imposing a £1.2m fine on Scottish Power Generation Ltd for an accident at Longannet Power Station in October 2013 in which an employee was badly injured when he was engulfed by an escape of high pressure, high temperature steam.

The incident was caused by a valve which had been identified in 2009 as faulty due to a missing part and listed for repair, but in respect of which the repair order was cancelled in 2011 and safety precautions subsequently removed without the repair being carried out. The injured employee had attempted to operate the valve in accordance with his duties.

Purporting to apply the 2015 Guideline “through the prism” of prior Scottish decisions, the sheriff selected a fine of £1.75m, classing the offence as one of high culpability with a high likelihood of harm, and committed by a “very large” company. A fine of £2.5m, being towards the upper end of the appropriate range, was the proper starting point, which was discounted for an early plea.

The company argued that the sheriff had argued in applying the Guideline, which was “mechanistic and formulaic” and inconsistent with the discretionary nature of sentencing in Scotland, and should instead have followed the guidance in previous cases in the High Court. Although an earlier 2010 Guideline had been adopted in part, it did not follow that the 2015 Guideline, which vastly increased the level of fines, should automatically be followed.

Speaking for the court, Lord Carloway, who sat with Lords Brodie and Bracadale, said there was no reason to depart from the court’s approach in Geddes v HM Advocate (2015), when judges were encouraged to have regard to English sentencing guidelines but not to apply them in a mechanistic way: to ensure a degree of consistency “it may be equally important to have regard to existing precedent”. The guidelines would often provide a useful cross check, especially where the offences were regulated by a UK statute.

Noting that there were over 200 High Court judges and sheriffs, with varying degrees of experience, who might be called on to impose fines in such cases, he continued: “The contention from the appellants that Scotland represents a sentencing idyll, in which the courts have created a model of consistency universally admired by legal professionals specialising in the regulatory field, is not one which is immediately accepted.”

Having regard to the approach in the 2015 Guideline, and the extent of the discretion still left to the sentencing judge, “describing the Guideline in pejorative terms relative to the generally looser Scottish approach to sentences is misplaced. Similarly, the somewhat startling submission, that the use of guidelines of the type under consideration here is productive of inconsistency and inefficiency, is simply not accepted”.

In relation to the appropriate level of fine, recent Scottish cases illustrated that there was a significant difference between cases in which the offender was a relatively small company in terms of turnover and those where it was, or was part of, a large corporation. “Having regard to these cases, and recognising also the significant difference between fatal and non-fatal cases, this court would have been considering a starting point (before any discount for an early plea of guilty) of about £1.5m in this case. That has regard to the serious nature of the breach, which the court analyses in much the same way as the sheriff, 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.”

Returning to the significance of the 2015 Guideline, “where the court has said that regard should be had to guidelines in England & Wales in a particular field, such as UK health and safety regulation, it means to such guidelines as are in current use and would be applied by the courts of England & Wales to the offence, had it happened in that jurisdiction. It would be bordering on the ridiculous to apply a guideline which was out of date. Accordingly, the appropriate guideline to have regard to, as a cross check, in this case, is the 2015 version”.

The court added that it was not exactly clear how the sheriff had applied this guideline, not having adjusted his starting point figure once he had identified the aggravating and mitigating factors, or explained how he reached his figure of £2.5m. “Certainly, there is no precedent cited by him which would justify such a figure in a non-fatal case.”

The low number of employees exposed to risk was a mitigating factor, which when set against the offence as a significant cause of actual harm and the very large nature of the appellants’ group, supported the £1.5m figure when using the 2015 Guideline as a cross check. The appropriate discount for the early plea was 20%, producing a fine of £1.2m.

Click here to view the opinion of the court.