Health and safety fines a cross-border headache

Things are a little clearer following the recent decision of the High Court of Justiciary on the note of appeal against sentence by Scottish Power Generation. The questions for the appeal court were broadly whether the 2015 guidelines should have been taken into account at all and if so whether they were applied correctly by the sheriff in Dunfermline who imposed a fine of £1.75million.

It was suggested the 2015 guidelines were mechanistic, formulaic, complex and sometimes confusing. It was also argued the court procedure required to make full use of them was adversarial, somewhat alien to Scotland and that overall, the way Scottish courts had historically dealt with health and safety sentencing was preferable having produced consistent results over time with the appropriate degree of flexibility.

In the appeal court decision, it was noted the 2015 Guidelines were introduced to promote greater consistency south of the border as the relative infrequency of health and safety prosecutions meant judicial experience was generally limited. There was also a view that sentences imposed on large corporations were, on the whole, too low.

The appeal court did not accept the suggestion that the historical approach to health and safety sentencing in Scotland had been quite as consistent as suggested, pointing out there were a number of appeals where the first instance fines had been moved up or down in recent times. It was also recognised there had been some significant fines for larger entities in Scotland, particularly the £15 million imposed on Transco in 2005 following the Larkhall fatalities.

The decision in relation to the 2015 guidelines was that they should not be substituted for the approach previously taken by Scottish courts but could be used for the purposes of a cross check particularly where the offence is governed by legislation which applies equally north and south of the border such as the Health and Safety at Work Act 1974. It was pointed out this was entirely consistent with the approach taken in Scotland to the principles underpinning the previous English health and safety sentencing guidelines (2010) which had been “recognised” in the Scottish courts.

The appeal court highlighted that the core principles both north and south of the border are broadly similar based around the general aim that the fine should be sufficient to “achieve a safe environment for the public and bring that message home, not only to those who manage a corporate defendant, but also to those who own it as shareholders”. It was noted that Scottish courts have consistently taken account of and recognised in fine levels imposed the distinction between situations where no injury has occurred, those where serious injury has resulted and those involving fatalities together with the need for adjustment up or down in respect of the identified aggravating and mitigating factors and the requirement to take account of the size of the company and relative turnover.

The appeal court recognised health and safety prosecutions are as infrequent in Scotland as in England so Scottish judges may if they wish use the 2015 guidelines as a crosscheck but if they do they must clearly set out their reasoning.

Applying the Scottish sentencing principles as identified and using the 2015 guidelines as a crosscheck it was decided that the sheriff at first instance had taken too high a starting-point for the fine, then applied too large a discount for the early plea. The overall result was that the fine was reduced from £1.75m to £1.2m.

Reflecting on the questions posed previously it would seem that the 2015 guidelines will not be adopted wholesale by Scottish courts and that the possibility of increased levels of health and safety fine for companies, certainly of small to medium size, may not come to pass.

Mark Donaldson is a Casualty Partner with Clyde & Co