APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord MacLean	[2012] HCJAC 102 Appeal No: (1) XC70/12; (2) XC67/12; and (3) XC73/12 OPINION OF THE COURT delivered by LORD CLARKE in NOTES OF APPEAL AGAINST SENTENCE by (1) DUNDEE COLD STORES; (2) ELECTROGUARD SECURITY SYSTEMS; and (3) ROBERT A.S. CROCKETT & PARTNERS LIMITED Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant (1) : McCall; Capital Defence

Appellant (2); Gilchrist, QC; Simpson & Marwick

Appellant (3): Duff; Brodies

Respondent: Brown, AD; Crown Agent

24 July 2012

[1] These three appellants pled guilty at Dundee Sheriff Court to breaches of the Health and Safety at Work etc. Act 1974 ("the Act"). In the case of the first and second named appellants the breaches in question were of section 3(1) and 33(1)(a) of the Act and in the case of the third named appellant the breaches in question were of section 2 and section 33(1)(a), All the offences related to an incident on 3 October 2008 whereby Christopher Robert Carson, an employee of the third named appellants, when working on the roof of premises owned and operated by the first named appellant at Whittle Place, Gourdie Industrial Estate, Kingsway, Dundee fell through a fragile roof light falling a distance of approximately 6.5 metres to severe injury.

[2] The charges against the first named appellant libelled the following failure in statutory duty:-

"You did fail to ensure, so far as was reasonably practicable, the health, safety and welfare of said persons not in your employment and in particular Christopher Robert Carson...in that you did;

(a) fail to make a suitable and sufficient assessment of the risks to the heath and safety of persons not in your employment, arising out of or in connection with your undertaking, namely the employees of Robert A.S. Crockett & Partners Limited and the employees of Electroguard Security Systems and you did fail to identify the risks to which they were exposed when engaged in work at height on your premises and in particular the risks arising from fragile roof lights.

(b) fail to ensure that a safe system of work was being operated, in so far as was reasonably practicable, to ensure the health and safety of aforesaid employees of Robert A.S. Crockett & Partners Limited and Electroguard Security Systems when engaged at work at height on your premises".

The failures and duties libelled against the second appellant's were in identical terms to those just set out (a) save for the reference to "on your premises" which reference became a reference to "on the premises of Dundee Cold Stores Ltd" and (b) the reference to "the employees of Electroguard Security Systems".

[3] In the case of the third named appellants the failures of statutory duty libelled were:-

"Being an employer within the meaning of the aftermentioned Act and having a duty in terms of section 2 of the aforementioned Act to ensure so far as is reasonably practicable, the health, safety and welfare at work of your employees, and having duties in terms of the Management of Health and Safety at Work Regulations 1999 and in particular a duty to make a suitable and sufficient assessment for the risks to the health and safety of your employees to which they were exposed while they were at work, did fail to ensure, so far as reasonably practicable, the health, safety and welfare at work of your employees who were engaged in the task of working at height to install electrical cables, joint boxes and security lighting at aforesaid premises and in particular you did fail to ensure, so far as reasonable practicable, the health, safety and welfare at work of your employee Christopher Robert Carson...in that you did:-

(a) fail to make a suitable and sufficient assessment of the risks involved in the health and safety of your employees which arose when they engaged in the aforesaid task;

(b) fail to provide such information, instruction, training and supervision which was necessary to ensure, so far as was reasonably practicable, the health and safety at work of said employees engaged in aforesaid task; and

(c) fail to provide a system of work for the aforesaid task that was so far as was reasonably practicable, safe and without risk to health in that you failed to have in place a system to ensure that employees could work safely."

All three appellants pled guilty to the said charges by means of section 76 procedure.

[4] The circumstances of the accident which gave rise to the charges are set out in the sheriff's report to this court to which reference is made. Put shortly, Christopher Carson was, at the time of the accident, working as an electrician's labourer in the employment of the third named appellants. The first named appellants owned and occupied buildings at the site at Whittle Place, Gourdie Industrial Estate, Kingsway, Dundee. The locus of the accident was a building on the site known as Wash Plant 1. In March 2008 the first named appellants decided to install a security system at said site. The second named appellants won the contract to carry out the work which included the fitting of security cameras, sensors and PA system around the site. After the work was placed with the second appellants, the first named appellants decided that they wanted to have a lighting system fitted which could be linked to the security system. This work was not within the expertise of the second named appellants and they elected to subcontract it to the third appellants. Although some preparatory inspection of the site was carried out by representatives of the appellants and there were discussions about the work involved, under reference to site plans, it was decided that the exact cable routes to be installed would be chosen as the work progressed. None of the appellants instructed or carried out a risk assessment process in respect of the work to be carried out. Nor was any method statement as to how the work was going to be done safely produced by anyone. There was no on site safety assessment made prior to the work commencing on 3 October 2008.

[5] Mr Carson and the third named appellant's foreman, Trevor McCabe, were working together on the lighting installation at the building known as Wash Plant 1. They were the only employees of the third appellants working at that site on 3 October 2008. They had spent the morning clipping cables at the front of the building in question. Mr McCabe had to attend to another job in the afternoon. Before leaving the site at lunch‑time he gave instructions to Mr Carson as to how he should go about completing the work. He instructed Mr Carson to finish clipping cables at the top of the right hand side elevation of Wash Plant 1. The height at which the cable was to be attached was some 5 metres off the ground and 1 metre from the apex of the roof. As the sheriff narrated at page 6 of her report, "In order to complete the job, Mr Carson decided that it would be necessary to access the roof of the wash‑house". He decided that that would be necessary because a cable which he was to attach had been left on the roof of the wash‑house having been previously fed through a gap in the wall from the roof of the adjoining building by Mr McCabe. Mr Carson considered using a ladder to access the cable on the roof. He, however, had a fear of heights. Moreover the ladder in question appeared not to be of sufficient length to take him to the required height. He, accordingly, decided to access the roof using a mobile elevating work platform "MEWP". In order to make the installation of the cable ready for his foreman's return, Mr Carson intended to arrange the cable which was resting on the roof of Wash Plant 1 so that it would be capable of being clipped to the wall of the side elevation of the building in readiness for it to be connected to a security light and joint box. The cable in question could not be accessed either by standing on the ladder or the mobile platform which Mr Carson had raised to the level of the roof. He, accordingly, stepped from the basket of the platform and stood on the roof. He then walked to the rear of the roof and passed two roof lights on his left hand side which were not covered or fenced off or protected in any way. Having done so, he, however, found that he had left the necessary clips in the basket of the MEWP and he began to walk back across the roof to collect these clips. As he did so he stood on one of the roof lights and fell through it hitting machinery in the building below, before landing on a concrete floor.

[6] At the time of the accident Mr Carson was, as described by the sheriff at page 4 of her report:-

"A very fit and strong individual. He was a floor gymnast and had competed at national level. He boxed for two years and practiced Jujitsu and worked as a gymnastics coach. He also used to cycle every day."

As a result of the accident he sustained serious injuries. On admission to hospital he was found to have suffered fractures to three vertebrae in his back. He also suffered a wound when, as a result of landing on his back, a drill bit in his overall pocket punctured his lower back. He fractured his left shoulder in three places and his shoulder was also dislocated. He suffered bruising and cuts to both shins and also suffered a head injury although his skull was not fractured. After hospital treatment for one week he was discharged. He had surgery in August 2009 to reattach three tendons in his shoulder and shave splinters of bone. This was followed by a course of physiotherapy. He continued to have problems related to the said shoulder injury. He had become irritable and verbally aggressive towards his parents. He suffered problems with regard to memory and concentration. In early 2009 he was referred to a consultant in charge of brain injury rehabilitation at the Royal Victoria Hospital in Dundee. The consultant, who saw him, formed the view that he had a number of problems with cognitive and emotional symptoms which may well have been related to brain injury. Mr Carson reports that he continues to suffer from severe migraine and back pain. Although he was originally able to return to work, four or five months after the accident, he suffered a further injury to his back in the course of his employment and was subsequently made redundant. As at May 2011 his G.P. reported that he continued to suffer from pain and disability in relation to his injury, in particular he describes an ongoing pain in his back and left shoulder. As a result of his pain he has found it difficult to keep in employment. His recent jobs have involved manual work which he has struggled to do. He recently got a job as a delivery driver but found that this job, involving driving and getting in and out of the vehicle, aggravated his back and shoulder.

[7] On 24 January 2012, Sheriff Munro at Dundee fined both the first and second named appellant's, £135,000 each, which she said had been modified from £200,000, full payment to be made within 18 months of the date of sentence in respect of the fine imposed on the first appellant and full payment to be made within 14 months in respect of the fine imposed on the second named appellant. The third named appellant was fined £66,000 said to be modified from £100,000, full payment to be made within two years of the date of sentence. All three appellants contend that the fines imposed in each of their cases was excessive.

[8] This court had the benefit of full and careful submissions made on behalf of the three appellants, which contained a number of criticisms of the sheriff's approach to sentencing in this case. At page 20 of her report the sheriff, in introducing her reasoning in arriving at the sentences which she imposed, informed the court that she was extremely familiar with this branch of the law having now dealt with several cases involving contraventions of section 2 and 3 of the Act. As well as drawing on that experience she said that she had had regard to the agreed narrative which she had been provided with and financial information relating to each of the appellants. She also said that she had regard to the document "Definitive Guidelines of The Sentencing Guideline Council In England On Corporate Manslaughter And Health & Safety Offences Causing Death", which she noted listed factors which were likely to aggravate or mitigate such offences.

[9] Against that introduction and a consideration of some of the material referred to the sheriff at page 26 of her report said, "In summary, therefore, I reach the conclusion that the preparation for and conduct of the works in which Mr Carson was involved had fallen very far below the basic standards which should have been expected of reputable organisations". At page 27 she went on to say:-

"I indicated that I did not think it was appropriate to apportion blame amongst the appellant organisations to a narrow degree, nor to assess any question of contributory negligence, which is a matter for the civil court which would be hearing Mr Carson's action for damages. Although there might have been shadings of culpability, as I described it, and certainly in the case of Robert AS Crockett & Partners, that company had a direct relationship with Mr Carson and a direct responsibility for supervision, I did not consider that it was appropriate to differentiate on the basis of such shadings of responsibility. I said that in my view what mattered was that it was perfectly clear that any one of the appellant businesses could have taken a step or steps which would have prevented this serious accident occurring."

[10] Before this court, counsel for the first appellant, submitted that both of those passages revealed serious errors on the part of the sheriff. There was no proper explanation or analysis as to why the appellants, who are described as being responsible between them for the performance and conduct of the work, had fallen very far below the standards which should have been expected of reputable organisations. The sheriff's report betrayed, perhaps, an over‑concentration on her part on the injuries caused to Mr Carson, without considering dispassionately the nature of the actual breaches of the relevant legislation to which the appellants had pled guilty. The cases against the first and second appellants involved a failure to carry out a risk assessment exercise and to have put in place, as a result, of such an exercise a safe system of work. In the case of the first named appellant, however, the information before the sheriff was that the incidence of building contract work on the site was small. The first named appellants did, however, have a system of risk assessment for work carried out by themselves and their own employees. What had happened here was that they had failed to see to it that a risk assessment was carried out by the second and/or third appellants. As to the failure to provide a safe system of work no one among the first appellants had anticipated that the work contracted would require any workmen going on to the roof. While the work did involve work at height there was no reason for it having to be done by a person standing on the roof. The work had been in the process of being carried out without anyone needing to be on the roof. Mr Carson at the time of the accident was on his own and apparently had concerns about working at height. That was not to have been anticipated by the first appellants. He was working on his own because the person he normally worked under was off ill on the days in question. It could not be asserted with confidence that even if a risk assessment exercise had been carried out the accident in question would have been foreseen.

In her report to this court the sheriff at page 23 stated:-

"I initially considered the English case of R v Chargot Limited (t/a Contract Services) and Ors [2007] EWCA Crim. 3032 in another context in another case, and the part of the judgment relating to the appeal against sentence is very brief. However, in the light of the circumstances of the case, and the penalties imposed, I considered it to be very useful when considering what sentences to impose in this case."

Counsel for the first named appellant pointed out that the Chargot case involved a fatality. There were three appellants fined for contraventions of the provisions of the Act. The fine imposed in respect of the first appellant was £75,000 and an order to pay £37,500 costs was made. The second appellant was fined £100,000 and ordered to pay £75,000 costs. The third appellant was fined £75,000 and ordered to pay £103,000 costs. At the material time, the first and second appellants were members of a very large group of companies of which the third appellant was the managing director. Extensive project work was being carried out at premises owned by the group which included the construction of a car park. On 10 January 2003 an employee of the first appellants was driving a dumper truck at a farm in relation to the construction of a car park as part of the said project. He was not the usual driver. He had been asked to drive the truck by his foreman. The task he was required to perform at the relevant time was to take a load of spoil approximately 500 yards to a hole into which it was to be deposited. As he was driving down a ramp the dumper truck fell on to its side and for reasons that were never fully resolved he was buried under the spoil and died. The prosecution's case was that the first appellant was the employer of the deceased and other workers on the site and had failed to ensure their safety. The second appellant who owned the company carrying out the project at the locus had failed to ensure that the project was not carried out in such a way as to expose the deceased and others to risk to their safety. As far as the third appellant was concerned he was the director of the second appellant and the offence, it was contended, was committed with his consent or connivance or was attributable to neglect on his part. The Court of Appeal at para 29 of its judgment stressed that the fines imposed were "very substantial" but the court considered "that the businesses in question were clearly very substantial businesses". For example, the turnover of Chargot Limited was in excess of £4 million per annum. The court in that case was also clearly critical of the appellants, taken together, as seeking to evade liability. At paragraph 32 referring to strong words used by the trial judge of the third appellant the court said:-

"These were undoubtedly strong words. But they need to be read in the context of a prosecution which had its origin in a tragic accident in which a young father of two had been killed. The evidence established that, in effect, no thought had been given to health and safety matters. This would appear to have been because the work in question was what was described as 'in‑house', in other words not part of the general business of the companies, and done on a relatively ad hoc basis when employees were available to do it"

Counsel for the first named appellant in the present case submitted there were distinguishing features between the position of the appellants in the Chargot case and the present case. The sheriff had, therefore, clearly been wrong in concluding that it was "very useful" for her to consider the sentences which were imposed in that case. At page 24 of her report under reference to the penalties imposed in Chargot said "These financial penalties were imposed after trial and therefore did not attract any discount, but they were of course imposed more than five years ago (emphasis added)". It was submitted it was totally unclear what the sheriff intended to convey by the emphasised remark.

[11] At page 16 of her report the sheriff referred to authorities cited to her by the representative of the second named appellant. She then states, "For no reason which was explained, he did not make reference to LH Access Technology Limited v HMA 2009 SCCR 2008". The sheriff, however, made no further reference to that case but the fact that she did make the remark she did might, however, leave the reader to suppose that she was implying that she herself had considered the decision in that case and that she considered it to be significant. Yet she never raised it with the parties during their submissions to her. If she did rely on this case, to any material extent, then it was submitted, she was wrong to do so. Like the Chargot case it was not an appropriate comparator for approaching the present case. It, like Chargot, was a death case. The court took the view that it was a major aggravating factor that an employee of the first appellant manufacturer adopted an unusual and inherently dangerous procedure and introduced an unsafe system of work which led directly to death. It was also seen as a major aggravating factor that the deceased's supervisor witnessed the unsafe and inherently dangerous procedure being undertaken and then failed to intervene. Moreover the turn‑over of both appellants in the LH Access case was far greater than the turn‑over of any of the appellants in the present case.

At page 23 of the sheriff's report the following passage appears:-

"It is extremely important in this respect to place into a Scottish context the frequent defence submission regarding R v Clifton Steel [2008] Cr.App. R(S) 5. In that case the English court looked at fines imposed on companies which had breached the 1974 Act, with fatal consequences, and found that in the five years between 1 April 2000 and 31 March 2005, fines in excess of £100,000 had been imposed in only 3.6% of cases. However, as was said in Howe, when assessing the financial penalty, the court must look at the whole sum (fine and costs) which it was minded to impose and consider the impact on (the accused). In the absence of cost orders in Scotland, there can be no direct comparison between fines in the two jurisdictions". (emphasis added)

The court was informed that there was no submission made by anyone to the sheriff, under reference to R v Clifton, far less in relation of what was to be taken from it. The thrust of the sheriff's reasoning under reference to the case of Chargot and the case of R v Howe (1999) 2 Cr App R(S) 37, it was submitted, betrayed a significant error of approach. The sheriff appeared to consider that, in looking at penalties imposed in England and Wales for breaches of the Act for guidance, it was appropriate to have regard to the global sums imposed in that jurisdiction representing not only the fines in question but cost awards that might also have been made. In referring to the decision in the case of Chargot the sheriff failed to set out the actual fines imposed, absent costs. She referred to the total sums imposed, inclusive of costs which the appellants were ordered to pay. In England costs were not treated as a financial penalty for the offence in question see Angela Roberts (2009) EWCA CRIM 470, para 12.

[12] Counsel for the first appellants then proceeded to submit that while the sheriff claimed in her report that after considering the serious nature of the offences, she proceeded to look at all the relevant mitigating and aggravating factors before arriving at the final outcome in her sentencing exercise, it was clear that in certain respects she had in fact failed in that regard. This was a case in which there had been no deaths. The sheriff at page 25 of her report stated when referring to aggravating factors "... it is clear that (a) there was no actual fatality in this case although Mr Carson was extremely seriously injured and could easily have been killed." Serious injury did not, it was submitted, fall to be regarded as an aggravating factor in isolation in the Definitive Guidelines referred to previously. The Definitive Guidelines state that in cases where death has occurred one aggravating factor is "more than one death or very grave personal injury in addition to death" (emphasis added) will constitute an aggravating factor. In the recent Scottish case of Scottish Sea Farms Limited v HMA [2012] HCJAC 11 the failures of the second appellant in that case resulted in serious risk of death to an individual while the failure on the part of the first appellants resulted in two deaths. The court in that case did not appear to consider that as far as the second appellant was concerned there was an aggravating factor present. It was submitted that the severity of the Mr Carson's injuries had already been taken into account in assessing the overall gravity of the offence.

[13] Aggravating factor (c) in the Definitive Guidelines refers to "cost cutting at the expense of safety" the sheriff, in addressing that guideline, at page 25 of her report stated:-

"There was no evidence of cost‑cutting at the expense of safety, but as explained under the general heading of how far below the requisite standard each appellant company had fallen, it is worth repeating that not a single method statement or risk assessment was prepared. By definition, this saved time and accordingly, one can reasonably imagine, cost to each organisation; "(emphasis added)"

It was submitted that in that passage there was betrayed an error on the part of the sheriff in relation to what was meant by this aggravating factor. In R v Howe at page 42 reference was made to this aggravating factor as involving "deliberate flouting of safety regulations for reasons of economy." In HM Advocate v Munro and Sons (Highland) Limited 2009 SCCR 265 this court approved the Court of Appeal description of this aggravating factor in R v Balfour Beatty Rail Infrastructure Limited [2006] EWCA Crim 1586 as involving "a breach with a view to profit seriously aggravating the offence". Following those authorities, it was submitted, that it was clear that the aggravating factor in question arose only in those cases where the failure to observe the appropriate regulation or other provision was deliberately done for economic reasons. Not only had the sheriff failed to grasp this but she had no evidence before her that the failure to obtain method statements or risk assessments could be said to have saved the first named appellants significant money or have improved their profits significantly. This is demonstrated by the sheriff's use of the word "imagine".

[14] Turning to consider mitigating factors in the present case, counsel for the first named appellants drew the court's attention to certain further features of the sheriff's report. The sheriff at page 25 of her report addressed the mitigating factor of a prompt acceptance of responsibility. She stated that this had been recognised by her in the form of 1/3 discount in sentence. In so addressing matters, it was submitted, she erred. A reduction in sentence under section 196 of the Criminal Procedure (Scotland) Act 1995 for an early plea was not an aspect of mitigation - see Gemmell v HM Advocate [2011] HCJAC 129 para 33 per LJC Gill. In the circumstances the sheriff had failed to give any proper account to the prompt acceptance of responsibility by the first appellants in mitigation of their positions. The sheriff had before her evidence of this in the form not simply of the plea under section 76, but from the fact that the first named appellants, on the day after the accident, accepted the need to address health and safety and immediately appointed an external advisor to undertake a review of these matters. The Definitive Guidelines, in setting out principles in this area recognised, it was pointed out, that a good health & safety record was a mitigating factor. In this respect the sheriff at pages 25 - 26 of her report stated, "I certainly had no evidence that any of the organisations had anything other than a good record in this regard." That remark, however, it was submitted, did not make clear that the sheriff found this mitigating factor to be present. More importantly she did not in any respect explain the effect, if any, of it on her choice of sentence as this was considered should be done in the Scottish Sea Farms case. There had been no previous enforcement notices against the first named appellants, or prior warnings to them, and there had been no reported concerns about their observance of health and safety requirements subsequent to the circumstances of the present case. Yet it was totally unclear if the sheriff took account of the first named appellant's good record in these respects.

[15] More generally a positively responsible attitude towards health and safety, it was submitted, fell to be regarded as mitigatory. In this regard the sheriff had failed to give proper, or indeed, possibly, any weight, to the first named appellant's responsible attitude to these matters. At page 26 of her report the sheriff referred to senior counsel's submission about this matter in these terms, "The only evidence I had of this was a contention that Dundee Cold Store Limited had obtained health and safety advice from 'organisations who provide such advice after it bought the premises in 2007.'" The first named appellants were left unclear as to whether or not the sheriff paid any attention to this information. Had she not been satisfied with what was said in this respect she should have requested evidence in support of it. In the absence of any dispute by the Crown with regard to the submission in mitigation the sheriff, it was said, was not entitled simply to disregard it. This appeared to be possibly what she had done - see HM Advocate v Murray 2008 SCCR 276, McCartney v HMA 1997 SCCR 644 and Hughes v Donnelly 1994 SCCR 598. Counsel then referred this court to various information that could have been provided to support what senior counsel had said in this respect to the sheriff.

[16] Ultimately, counsel contended, it was unclear from the sheriff's report as to the extent she considered each of the appellants allowed their conduct to fall below the required standard. At page 22 of the report she stated that they all fell "far short" of their responsibilities. At page 26 she stated that the preparation for and conduct of the work "had fallen very far below the basic standards which should have been expected of reputable organisations". In addition at page 27 the sheriff said that she did not think it appropriate to apportion blame among the appellants "to a narrow degree" and that she did not consider it appropriate to "differentiate on the basis of such shadings of responsibilities". In expressing herself in this way it was submitted that the sheriff had failed to consider at all whether the different obligations on each of the appellants, and their different roles in relation to the work in question, influenced the assessment of the extent to which they fell below the standards they ought to have reached. Their failures were not identical. The first named appellant's failure was principally that it omitted to have the second and third named appellants produce risk assessment or work method statements for their consideration. There was no suggestion that the first named appellants were themselves qualified to carry out a risk assessment or method statements in respect of the work in question. While requesting production of a risk assessment from others would have revealed that none had been carried out, the sheriff had failed to have regard to the fact the first named appellant had acted in good faith as a customer of the second named appellant which company they had employed for their experience and reputation. While it was accepted that the first named appellant had failed to meet their statutory obligations and thereby fell below the necessary standard, their conduct should not have been regarded as involving them falling far or very far below the requisite standards.

[17] The ultimate criticism made on behalf of the first named appellant of the sheriff's approach to sentencing was that she gave no proper indication as to the assessment she made of the first named appellant's financial position with regard to their ability to pay. The sheriff had been provided with company accounts which showed losses for the years 2007 and 2008 and then significant profits for 2009 and 2010. She was also provided with a letter and summary profit and loss account for 2011 from the first appellant's accountants. These indicated a £1 million decline in turnover between 2010 and 2011 and a net profit of £271,000 (contrasted with profit in excess of £1.5 million in 2010). The explanation for the decline in turnover was that it reflected a decline in growing conditions during the growing season of the crops grown by the first named appellant. The sheriff however, it was submitted, failed to explain how she viewed the appellant's financial position at the date of sentence and what aspects of the accounting material she had regard to when fixing the fine she imposed. She did ask for information about director's remuneration and was told that none was paid. Her failure to address the question of decline in turnover suggested that she had overestimated the means of the company at the time of sentencing and that, accordingly, the fine imposed was excessive. For these, and all the other reasons set out above, the submission on behalf of the first named appellant was that the sheriff had clearly, and seriously, misdirected herself and that the fine imposed should be quashed as excessive.

[18] Senior counsel for the second appellant, to a significant extent, adopted the criticisms advanced on behalf of the first named appellant regarding the sheriff's approach to the sentencing exercise which, he contended applied equally to the treatment of the second named appellant's case. He did himself go on, however, to make some specific criticisms on behalf of the second named appellant's of the sheriff's approach. The sheriff had, it was submitted, erred in her assessment of the relative culpability of each of the appellants standing the pleas agreed and tendered on behalf of each. Whilst each appellant had admitted failures in their statutory duties in relation to risk assessment and the provision of a safe system of work, the position was that the third named appellant had also admitted to a failure in respect of provision of information, instruction, training and supervision, all as noted in the sheriff's report at page 13. These failures had not been libelled against the second named appellants. This revealed, it was said, a material difference in culpability between the position of the second named appellant and the third named appellant, having regard to the agreed narrative before the sheriff that the injured workman had resorted to climbing onto the fragile roof in the course of his work because, inter alia, he had been left untrained and unsupervised alone and when there was no one else present to foot a ladder that he might otherwise have used. (see the sheriff's report at pages 6- 7.

[19] The sheriff should have had regard to the context, as had been set out in mitigation, on behalf of the second named appellant, that the second named appellant's misapprehension that no working on the roof (with the exception of the control room roof, which provided a safe working platform) would be required during the sub‑contractor's operations and that all other work would be carried out from ladders or from the safety of the basket of the MEWP. The second named appellant's misunderstanding in that regard did not arise because of mere assumption on their part but arose as the result of the on site meeting as narrated by the Crown between a senior representative of this appellant and the sub‑contractor prior to the commencement of work (see sheriff's report at page 5). The misunderstanding was reasonably based, standing the position of the third named appellant that their supervisor had specifically instructed the injured party to stay off the roof and the information given to the sheriff to the effect that, after the accident, the third named appellant was able to complete the task by using a ladder and without accessing the roof - (see sheriff's report at page 12).

[20] The sheriff, in addition, appeared not to have accepted the submission, made on behalf of the second named appellant that the failures of this appellant were not systemic - on the basis that no risk assessments were produced in relation to the work carried out by their own employees (see pages 16 - 17 of the report). In reaching that conclusion she had misunderstood what was told to her in mitigation namely that there were merely no site specific risk assessments. Furthermore, and more importantly, she overlooked the fact that (i) this appellant was not accused of any failings in relation to its health and safety obligations towards its own employees and (ii) there was no suggestion that the work carried out personally by this appellant had been planned and executed in anything other than an acceptable manner.

[21] The starting point chosen by the sheriff for the level of fine to be imposed was, in all the circumstances, too high and failed, in particular, to recognise that this was a non‑fatal case. These appellants had operated for 30 years without any conviction and no reported accidents. The most recent accounts showed turnover down by £400,000 and gross profits down by £300,000, these drops in turnover and profit being because of the state of the economy. Employees had already had to be dismissed because of the financial situation of the company.

[22] Counsel for the third named appellant adopted all that had been said on behalf of the first and second named appellants in relation to the sheriff's approach to sentencing in so far as it could be applied to this appellant's position. She founded, otherwise, on the particular financial position of these appellants and their ability to pay. Reference was made to a report from the companies accountant's dated 2 May 2012 which made references to the net losses sustained by the third named appellant during the period 2009 - 2011 being £12,018 for the year to 31^st January 2009, £21, 638 for the year to 31^st January 2010 and £73,198 for the year ending 31^st January 2011. Draft accounts for 2012 revealed a loss of £30,423. Projected profits and loss accounts showed a net loss of £14,957 for the year to 31^st January 2013. The company was a small family company and had been in existence for 40 years and has 10 employees. The three directors, who drew salary from the company were Mr David Crockett, his wife and his mother. Its creditors, at present, amounted to £70,920. The accountant's report, previously referred to, states that "the company is experiencing difficult trading conditions financially and one electrician had to be made redundant in October 2011 and another left due to the uncertainty of continued employment and has not been replaced. The company's balance sheet at 31^st January 2012 shows that its liabilities exceed its assets." Because of the sheriff's misdirections and her failure to state properly the regard she had to relevant information, the fine imposed in respect of this appellant was clearly excessive and should be quashed.

Decision

[23] We are entirely satisfied that the formidable, and several, criticisms made of the sheriff's approach to sentencing in this case in respect of all three appellant's were well‑founded and that the fines imposed fall to be quashed. There now have been a number of cases which have given authoritative guidance as to the approach to be adopted by a sentencing judge in dealing with such cases. While the sheriff refers to such cases in her report we regret to have to say that it appears to us that either she failed to understand what was being said in these or, in the event, chose to depart from what was said in these cases because of her view of the particular circumstances of this present case. While, of course, each case has to be decided on its own facts and circumstances, she had, in our view, no warrant for approaching matters in the way she appears to have done.

[24] The court in deciding the appropriate sentence, in such cases, will in the first place make an assessment of how serious a case it is dealing with. A number of factors will contribute to that assessment one of which will be, of course, the effect that the relevant breach of statutory provision has had on the victim or victims and a breach resulting in a fatality or fatalities will be regarded as automatically having a significant aggravating factor. But even an initial assessment of a case being a particularly bad one will require to be adjusted in the light of mitigating factors and similarly a case, not so regarded, may have to be reassessed in the light of aggravating factors. In the present case we have come to the view that the sheriff has been unduly distracted by the serious injuries which the workman sustained in this case and has elevated the culpability of the appellants to a higher level than was justified by focussing too much on that factor. Moreover she appears to have been driven in her approach by what she perceived as a continuing failure by courts to punish those who breach the relevant statutory provisions sufficiently severely. She does so, in part, by reference to remarks made in the case of Howe, decided over 10 years ago, without apparently taking into account that in more recent times fines imposed in such cases have increased considerably. The sheriff did not have before her the decision of this court in Scottish Sea Farms Limited v HM Advocate [2012] HCJAC 11, as it was decided after she imposed her sentences in this case. At page 20 of her report, however, she said that "Having considered the judgment in that case I would not have imposed different sentences had the judgment been issued in advance of my decision." We find that remark surprising. The court in the Scottish Sea Farms case at paragraphs 18 and 19 sought to bring together the authoritative guidance given, to date, in relation to the relevant considerations to be taken into account in such sentencing exercises. The court said this:-

"(18) The relevant considerations in sentencing in a case of this kind were considered in HMA v Munro in which the court endorsed the approach taken by the Court of Appeal in England in R v Balfour Beatty Infrastructure Services Limited. The principles which are relevant to the present case are as follows:

(a) Where death occurs as a consequence of the breach, that is an aggravating feature, multiple deaths being viewed even more seriously that single deaths.

(b) A breach with a view to profit is a serious aggravation.

(c) The degree of risk and extent of the danger and in particular whether this was an isolated incident or one continued over a period.

(d) Mitigation will include (1) a prompt admission of its responsibilities; (2) steps taken to remedy deficiency; and (3) a good safety record.

(e) The resources of the offender and the effect of a fine on its business are important. Any fine should reflect the means of the offender but could not be said to stand in any specific proportion to turnover or profit. The objectives of the fine should be to achieve a safe environment for the public and bring that message home not only to those who manage a corporate offender, but also those who own it as shareholders.

(19) This approach is reflected in the Definitive Guidelines of the Sentencing Guidelines Counsel in England on corporate manslaughter and health and safety offences causing death, which list factors likely to aggravate or mitigate those such offences. Aggravating factors include: (a) more than one death, or very grave personal injury in addition to death (emphasis added); (b) failure to heed warning or advice; (c) cost‑cutting at the expense of safety; (d) deliberate failure to obtain or comply with relevant licences; and (e) injury to vulnerable persons. Mitigating factors include: (a) a prompt acceptance of responsibility; (b) a high level of cooperation with the investigation, beyond that which will always be expected; (c) genuine efforts to remedy the defects; (d) a good health and safety record; and (e) a responsible attitude to health and safety, such as the commissioning of expert advice or the consultation of employees or others affected by the organisations activities."

The last mentioned Definitive Guidelines were not available to the court in the case of Munro. The court in Scottish Sea Farms went on to note that they had statutory effect only for England and Wales but "may be noticed for the purpose of sentencing similar cases in Scotland" (para 19). We agree with that remark. The court continued "although they apply to cases involving death, and so are not strictly relevant to the position of the second appellants, many of the aggravating or mitigating factors which may apply in such cases will also be relevant to consideration of offenders in the position of the second appellants." The sheriff had cited to her the case of Munro, which as we have noted pre‑dated the "Definitive Guidelines" just referred to, but which, in broad measure, sets out authoritatively the approach to be followed in Scotland in such cases. Those authorities make it perfectly clear that the exercise which a sentencing judge has to carry out in such a case involves assessing, in the first place, as we have said, the seriousness of the breach or breaches and the incident or incidents themselves. That assessment as we have already indicated will give the court a provisional view of the kind of level of penalty which might be appropriate in the case before it. It will only be a provisional assessment. The court must then proceed to look at all the relevant aggravating and mitigating factors which may require it to move up or down, and perhaps significantly up or down, from the provisional assessment. Lastly, it will require to have as full information as possible as to the financial position of the accused at the time of sentencing and to pay particular regard to it in assessing and stating what penalty falls to be imposed. Whatever lip service the sheriff paid to the relevant authorities on the matter, we are satisfied that, in material respects, she failed to follow the authoritative guidance contained therein in the various respects highlighted by counsel in the thorough and careful submissions to this court. In that situation we do not intend to rehearse all of them again in detail since, in so far as they were material, we agree with them. But we should highlight certain features of the sheriff's approach which clearly, in our judgment, were misconceived in the hope that they might not be repeated in the future.

[25] In a multiple accused case like the present it can rarely, if ever, be appropriate to fail to examine carefully the individual circumstances of each appellant and their particular participation in the circumstances resulting in the accident and the particular mitigating and aggravating factors, if any, which relate to the them individually. Save for having some regard to the differences in the financial position of the appellants, the sheriff in this case has not carried out any such exercise. The consequences of such a failure in this case are well illustrated by the fact that the third named appellant pled guilty to matters in addition to what the first and second named appellants pled guilty to. Those additional matters could not be regarded as insignificant. They should have been specifically taken into account in the sentencing exercise in relation to those appellants. They pointed, in our view, to greater culpability on the part of the third named appellants, as set out in the submissions on behalf of the second named appellants noted above. A clear‑headed, discerning assessment requires, also, to be taken by the sentencing court in respect of aggravating and mitigating factors as they arise from the circumstances of each of the appellants. Too often in the sheriff's report there appeared to our eyes a reluctance to recognise the impact of material before the court which was clearly mitigatory, having regard to the facts, or at least a failure on the part of the sheriff adequately to explain why such material facts fell to be discounted, or disregarded. Similarly there appeared to be a possible reluctance to see that certain factors, regarded as aggravating, had already been taken into account in the initial assessment of the seriousness of the offending. As counsel pointed out also there were differences in relation to mitigation and aggravation as between parties which are not sufficiently addressed as such in the sheriff's report. As we have said, how the court should engage in such an exercise is now clearly spelt out in the cases of Munro and Scottish Sea Farms and we commend, once again, sentencers in Scotland to follow the guidance in those cases.

[26] Another specific matter arising from the sheriff's approach to sentencing which requires comment is that, as noted, she seemed to consider that it was appropriate to arrive at an appropriate fine in the Scottish context by reference to English cases where costs had also been awarded and to seek to reflect, in this Scottish case, a combination of fine and costs as awarded in certain English cases. In our opinion that approach, if it was followed, was clearly misconceived. The two exercises of imposing a fine on the one hand and, in appropriate cases in England awarding costs on the other, are quite separate and reflect separate considerations. In Scotland where costs are not normally awarded there is no warrant for seeking to increase Scottish fines to meet the level of the combination of English fines plus English costs.

[27] A further feature that requires highlighting is this. According to the authoritative guidance, in a non‑fatal case the seriousness of the injuries to the person or persons involved in the accident is not, as such, an aggravating factor. These matters should be, no doubt, taken into account in the initial assessment of the seriousness of the offence. The distinction between fatal and non‑fatal cases has been clearly drawn both in England and Scotland. In the Scottish Sea Farms Limited case that distinction was illustrated by the difference of approach, adopted by the court, in respect of the first appellants who were responsible for death and that of the second appellants who were not so responsible but were responsible for serious injuries. It is not to be thought that there is no rationale for that approach. The rationale for that distinction was set out in the judgment of the Court of Appeal in Howe at page 43 where they said:-

"... it is often a matter of chance whether death or serious injury results from even a serious breach. Generally where death is a consequence of a criminal act it is regarded as an aggravating feature of the offence. The penalties should reflect public disquiet at the unnecessary loss of life."

[28] Lastly, in so far as the sheriff appeared to consider that the discount given for early pleas can be equiparated to taking into account mitigatory factors, she was wrong. [29] It follows from all that has just been said that the fines imposed in the present case must be quashed. The court considers that, without in any way understating the seriousness of the consequences of the accident to Mr Carson, the level of seriousness of the failures on the part of the appellants was not of the highest. In the case of the first and second named appellants their failure was to see that there was in place a safe system of work by virtue of having carried out themselves the risk assessment exercise or by calling for such an assessment to be presented to them. Those failures arose in a situation where they were not, however, the employers of the employee in question nor in charge of directing the work he was engaged upon. We consider that the additional factors libelled in the charge against the third named appellant do place their level of offending at a materially higher level of seriousness than is the case with respect to the other two appellants. But significantly to be set against the third named appellant's position in that regard was the considerably less robust financial position of those appellants and the small nature of their organisation. We consider that in respect of each of these appellants there were a number of significant mitigating factors as referred to in what is set out above which fall to be taken into account in each case.

[30] In all the circumstances, having sought to carry out the appropriate exercise in having regard to the relevant guidelines for cases of this sort, we reach the conclusion that the appropriate fine to be imposed in respect of both the first and second named appellants is £75,000 to be reduced to £50,000 in respect of their plea under section 76 procedure. In the case of the third named appellant we consider that the appropriate fine is £66,000 reduced to £44,000 to reflect the early plea. In the case of each of the first and second named appellants we will allow 12 months to pay and, in the case of the third named appellant, 18 months.