The eagerly anticipated Scottish court judgment in an appeal against the level of fine for health and safety breaches has now been published. The High Court decision reduced the fine imposed earlier this year on a company in the energy sector. However it concluded the “appropriate guideline” for Scottish courts to make reference to “as a cross check” for health and safety sentences, is the new sentencing guidelines for England and Wales, published in November 2015.

This judgment gives rise to significant wider implications for the health and safety sector in Scotland.

The appellant was fined £1.75 million at Dunfermline Sheriff Court in May this year as reported in our previous Law-Now. The company pled guilty to breaches under the Health and Safety at Work Act 1974 following a scalding incident at one of their premises. Alongside the high fine, what was particularly notable about this judgment was the Sheriff’s decision to apply the “Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guidelines” (the “Guidelines”). From 1 February 2016, these Guidelines have applied to offences in England and Wales. Since their introduction, the looming unanswered question for industry had been whether these Guidelines would be persuasive also in the Scottish courts. This was the first case where a Scottish court had decided to apply the guidelines.

The appellant challenged the fine primarily on the basis of the Sheriff’s recourse to the Guidelines. Three judges sitting in the Scottish appeal court, including the Lord Justice General, considered to what extent, if any, the Scottish Courts ought to have regard to the Guidelines. Ultimately, it was determined that “the court has, on several occasions, encouraged sentencers to ‘have regard to’ guidelines from south of the border in appropriate cases… There is no reason to depart from that approach in this case”. It was considered that “it would be bordering on the ridiculous to apply a Guideline which was out of date.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 emphasis, however, does appear to have been on use of the Guidelines as a “cross check”. The inference is that the Guidelines are not to be applied in a prescriptive and formulaic fashion. Instead, it is fair to say that the courts are encouraged to have an initial impression – one that may be “instantaneous, if not quite instinctive” – and then to reaffirm that decision by reference to the Guidelines.

By analogy, in the absence of Scottish sentencing guidelines, the same principle should apply to certain environmental offences where the same legislation applies in Scotland (such as the Transfrontier Shipment of Waste Regulations 2007) by virtue of the “Environmental Offences Definitive Guideline” applicable in England and Wales since July 2014.

Applying the Guidelines to the appellant’s original fine, the Court found that £1.5 million was an appropriate starting point. However, the bench noted the approach of Lord Turnbull in the 2013 case of HMA v Svitzer Marine: that a full one-third discount would involve too substantial a sum of money relative to the total. Following a similar approach, the Court found that a discount of 20% seemed reasonable in this instance, reducing the starting point of £1.5 million by £300,000 to produce a fine of £1.2 million.

The Court presented several reasons for allowing reference to the Guidelines. One justification was that “There are over 200 High Court full or part-time judges and sheriffs, each of whom may be called upon to fine corporations for serious breaches of health and safety regulations. They will have varying degrees of experience in the selection of the appropriate fine”.

The full implications of the judgment remain to be seen. Much will depend upon the interpretation of those imposing sentences and how greatly they feel obliged to refer to the Guidelines. It may be that what was intended as a “cross check”, becomes a compulsory starting point. In any event, what does seem a likely outcome is the introduction of higher fines for health and safety offences in Scotland, in keeping with that witnessed in England and Wales. Further, the Scottish Sentencing Council has announced recently that they are to draft a sentencing guideline for environmental and wildlife offences to provide guidance particularly on the sentencing of organisations. A health and safety guideline may be expected to follow thereafter.