The Scottish director of a construction company has been given one of the largest custodial sentences in recent years at Manchester Crown Court following the death of Scott Harrower, a Scottish employee who fell nearly 30 feet through a skylight.

Background

Mr Thompson’s company Building and Dismantling Contractors Ltd (BDCL) had been subcontracted by Michael Smith’s company, C Smith and Sons, to dismantle two buildings in Stockport.

Mr Harrower and four other men were working on roofs made of corrugated iron. Mr Harrower had almost fallen through a skylight the day before and police attended the site when another man fell through a skylight fracturing his spine, pelvis, right leg, heel and wrist. Despite this, the men were ordered back onto the roof. Later the same day, Mr Harrower was killed.

A HSE investigation concluded that the work was neither properly planned nor supervised and no safety precautions, such as nets were being used. There was no method statement or risk assessment in place.

The Companies

Both companies were guilty of breaching the Health & Safety at Work Act and the Work at Height Regulations. C Smith and Sons were also in breach of the Construction (Design and Management) Regulations.

BCDL was fined £400,000 with £55,000 in costs and C Smith and Sons £90,000 with £45,000 in costs. The new Sentencing Guidelines on Health and Safety Offences in England and Wales came into force on 1 February 2016 and the fines in this case will have been determined by reference to these Guidelines. The judge fined BCDL in the highest range possible for a company with a turnover of less than £2 million. The sentence handed down underscored the seriousness of the offence.

The Directors

Mr Thompson and Mr Smith pled not guilty to the charges against them as individuals, however, in February, the prosecution successfully argued that both men were personally liable. Mr Smith was convicted of health & safety offences as a result of exposing non-employees to risks to their safety, of work at height failures and, as the principal contractor, of breaches of the Construction (Design and Management) Regulations 2007. He was sentenced to 8 months in prison.

Mr Thompson was found guilty of gross negligence manslaughter and received a 6 year sentence. The maximum sentence for manslaughter by gross negligence is life imprisonment (as opposed to 2 years for an offence under the Health & Safety at Work Act).

How would Mr Thompson’s case have been prosecuted in Scotland?

Mr Thompson could have faced prosecution as an individual under health & safety legislation, however, manslaughter by gross negligence is not a recognised crime in Scotland. The closest equivalent crime is culpable homicide.

A culpable homicide prosecution for a health and safety breach death is very rare and it would be necessary to show the accused had the required mental state of “wicked negligence”. In England, the test is that a duty of care existed which was breached and the breach was a substantial cause of the death. The seriousness of the breach determines whether it is criminally negligent.