How should Scottish Courts apply the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Definitive Guideline?

The Scottish Appeal Court has approved the principle that it is appropriate for the Scottish Courts to have regard to the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Definitive Guideline (the 2015 Guidelines) that are applicable in England and Wales to all sentences imposed after 1 February 2016.

The Court was considering an appeal by Scottish Power against a fine of £1,750,000 which had been imposed following the company pleading guilty to a breach of Section 2(1) and Section 33(1) of the Health and Safety at Work Act 1974. The charge related to one of their employees who had been seriously injured and disfigured when he became engulfed in high pressure high temperature steam.

Although the Court upheld the appeal and substituted a lower fine of £1,200,000 the Court gave the following guidance:-

  1. Scottish Court are encouraged to continue to have regard to guidelines from England in appropriate cases, notably, but not exclusively, where the charges involve United Kingdom statutory offences.
  2. However English guidelines need not be interpreted and applied in a mechanistic way and it may be equally important to have regard to existing precedent in Scotland.
  3. Such precedent will include Opinions from the Scottish High Court or other approved sources.
  4. The Court observed that in Scotland there has been difficulty in determining the appropriate fines to be levied and that historically the Courts have had regard to the levels of fines imposed for equivalent offences in England.

In reducing the fine, the Appeal Court took the view that while the Sheriff of first instance did have regard to the 2015 Guidelines, it was not entirely clear how he had applied them. In reviewing the sentencing exercise the Appeal Court came to a lower 'starting point' namely £1,500,000 to which they applied a 20% reduction due to Scottish Power having tendered a plea of guilty.

Notwithstanding the result of the appeal, the fine still remains one of the highest ever imposed in Scotland for a non-fatal injury.