Over the course of the last few months there has been a significant increase in the level of criminal fines imposed by courts in both Scotland and England for breaches of health and safety legislation. For larger organisations fines which are measured in millions are the new norm. The sudden and dramatic increase is in part due to new sentencing guidelines which came into force in England and Wales in February this year (the “2016 Guidelines").

On 3rd November the Scottish criminal appeal court issued a judgement in the case of Scottish Power v HMA providing for the first time guidance on how the Scottish courts should approach sentencing in light of the guidelines. Peter Gray QC, represented Scottish Power in that case, and he provided an exclusive briefing for clients of Burness Paull in Aberdeen this month giving us a unique insight in to the significant decision.

Scottish Power had appealed against a £1.75m fine (reduced from £2m for an early guilty plea) imposed after an employee suffered severe scalding by steam that escaped from a defective pipeline valve at Longannet Power Station in October 2013. Sheriff McNair who imposed the fine found that the company had been aware of the defect for over four years by the time the incident occurred. The sheriff chose to calculate the appropriate fine with reference to the 2016 Guidelines reasoning that this was a decision available to him and that there appeared to be no reason why sentencing decisions should be any different north and south of the border.

Scottish Power appealed on the grounds that the sheriff was wrong to apply the 2016 Guidelines. They argued that the sheriff should have followed the guidance set out in case law in the Scottish courts and that reliance on the 2016 Guidelines proffered an incursion on judicial discretion. In any event, whether by reference to the 2016 guidelines or otherwise Scottish Power argued the sentence was excessive.

In allowing the appeal, the High Court held that the sheriff was correct to reference the 2016 Guidelines. In the opinion produced by the Lord Justice General, Lord Carloway it was confirmed that sentence should conform to domestic precedent and thereafter the courts are entitled to cross check the sentence with reference to the 2016 Guidelines: acknowledged as offering the welcome prospect of consistency in sentencing for health and safety breaches.

Reflecting on this new landscape, Peter Gray QC suggested strategically, going forward, it will be necessary to consider whether the 2016 Guidelines actually assist the defence in relation to sentence. Where they do, it will be necessary to consider seeking to include comment on the application of the guidelines by the Crown in any narrative. In the face of an anodyne narrative any court would be unable to decide how to properly apply the 2016 Guidelines. Disagreements as to the content of the narrative in the face of the potential range of penalty facing companies mean that we may be seeing many more trials for health and safety offences where the possibility of an acquittal or at worst perhaps a trial in mitigation are more attractive options.

Should the 2016 Guidelines not assist then Peter suggests the defence should still invite the court to proceed without regard to them: there is no actual obligation on the Scottish courts to apply them. Whether the courts accept any invitation remains to be seen. The Appeal Court was entirely silent as to what should occur or take precedence in the event of inconsistency and a difference in outcome between domestic precedent and the 2016 Guidelines. It seems inevitable that health and safety cases will go back to the appeal court in due course to consider this point and many others.

Over the course of the last few months there has been a significant increase in the level of criminal fines imposed by courts in both Scotland and England for breaches of health and safety legislation. For larger organisations fines which are measured in millions are the new norm. The sudden and dramatic increase is in part due to new sentencing guidelines which came into force in England and Wales in February this year (the “2016 Guidelines").

On 3rd November the Scottish criminal appeal court issued a judgement in the case of Scottish Power v HMA providing for the first time guidance on how the Scottish courts should approach sentencing in light of the guidelines. Peter Gray QC, represented Scottish Power in that case, and he provided an exclusive briefing for clients of Burness Paull in Aberdeen this month giving us a unique insight in to the significant decision.

Scottish Power had appealed against a £1.75m fine (reduced from £2m for an early guilty plea) imposed after an employee suffered severe scalding by steam that escaped from a defective pipeline valve at Longannet Power Station in October 2013. Sheriff McNair who imposed the fine found that the company had been aware of the defect for over four years by the time the incident occurred. The sheriff chose to calculate the appropriate fine with reference to the 2016 Guidelines reasoning that this was a decision available to him and that there appeared to be no reason why sentencing decisions should be any different north and south of the border.

Scottish Power appealed on the grounds that the sheriff was wrong to apply the 2016 Guidelines. They argued that the sheriff should have followed the guidance set out in case law in the Scottish courts and that reliance on the 2016 Guidelines proffered an incursion on judicial discretion. In any event, whether by reference to the 2016 guidelines or otherwise Scottish Power argued the sentence was excessive.

In allowing the appeal, the High Court held that the sheriff was correct to reference the 2016 Guidelines. In the opinion produced by the Lord Justice General, Lord Carloway it was confirmed that sentence should conform to domestic precedent and thereafter the courts are entitled to cross check the sentence with reference to the 2016 Guidelines: acknowledged as offering the welcome prospect of consistency in sentencing for health and safety breaches.

Reflecting on this new landscape, Peter Gray QC suggested strategically, going forward, it will be necessary to consider whether the 2016 Guidelines actually assist the defence in relation to sentence. Where they do, it will be necessary to consider seeking to include comment on the application of the guidelines by the Crown in any narrative. In the face of an anodyne narrative any court would be unable to decide how to properly apply the 2016 Guidelines. Disagreements as to the content of the narrative in the face of the potential range of penalty facing companies mean that we may be seeing many more trials for health and safety offences where the possibility of an acquittal or at worst perhaps a trial in mitigation are more attractive options.

Should the 2016 Guidelines not assist then Peter suggests the defence should still invite the court to proceed without regard to them: there is no actual obligation on the Scottish courts to apply them. Whether the courts accept any invitation remains to be seen. The Appeal Court was entirely silent as to what should occur or take precedence in the event of inconsistency and a difference in outcome between domestic precedent and the 2016 Guidelines. It seems inevitable that health and safety cases will go back to the appeal court in due course to consider this point and many others.