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HMA v The Trustees of the Roman Catholic Archdiocese of Glasgow Trust
Jul 6, 2021
On sentencing, Sheriff Shankland made the following statement in Court: “The offender is The Roman Catholic Archdiocese of Glasgow Trust prosecuted in the name of the trustees. The Trust is a charitable trust. All property and funds held and administered by the Archdiocese are for the express purposes of the Trust, namely for the advancement of the Roman Catholic religion, the advancement of education, the relief of poverty and the cure or alleviation of sickness or disease.
The offender has pled guilty by way of Section 76 of the Criminal Procedure (Scotland) Act 1995 to a breach of Section 3(1) and Section 33(1) (a) of the Health and Safety at Work etc Act 1974.
The tragic circumstances of this matter led to the death of Mr Christopher Duffy on 6 June 2016 at the Sacred Heart Church in Cumbernauld.
Mr Duffy and his wife were committed and loyal members of that church for almost 30 years. Mr Duffy, who was 81 years old, was a volunteer at the church and was a key holder which placed upon him a duty to open up the church in the mornings.
On the morning of 6 June Mr Duffy had taken his wife to the church to mass as was his daily habit. In the course of the morning he had a conversation with Father Campbell, the resident parish priest.
Father Campbell reported to Mr Duffy a conversation he had had that morning with a builder who was in the process of installing a lift into the church hall. The builder told Father Campbell that he had discovered pipes which he believed were for gas that may need to be removed by a specialist contractor. Father Campbell had told the builder that the pipes were in fact water pipes and were connected to a water tank in the loft space of the church.
About 12:30pm that day Mrs Duffy had become concerned that her husband had not returned home for lunch. She telephoned the housekeeper at the Chapel House who then made enquiries. Tragically the housekeeper found Mr Duffy on the floor of the church with no sign of life. Lying beside him was a broken ceiling tile. An ambulance was called and Mr Duffy was pronounced dead by the paramedics. A post-mortem was later carried out and the cause of death was established as chest injuries due to a fall.
The investigation concluded that Mr Duffy had fallen through the roof of the church some 50 feet having accessed the loft space. It has clearly not been possible to ascertain why Mr Duffy was in the loft space but it is believed that after his conversation with Father Campbell he may have decided, with the very best of intentions, to have a look at the pipes in question himself. The offence centres around the safety of the access to the loft space.
The church itself was built in the 1960s and is a concrete construction. The loft space is directly above the nave of the church. It is accessed via a door within the main church building. That door had a lock on it. The door also bore a sign which stated, “Danger – access only by special permission”. The Trustees had instructed an external company to provide health and safety advice in respect of the church since in or around 1999. The access to the loft and roof area was raised by these contractors in December 2002 and again verbally in a conversation between Father Campbell and a representative of the company in February 2015.
In the audit report of 11 December of 2002 it was noted that, “access to church roof void to be kept locked.” It was noted that there was a sign on the door as previously stated. The issue of access to the loft space was not raised again in any of the written reports from the company, the last of which before the death of Mr Duffy, was 27 February 2015.
During the inspection which took place on 16 December 2004 the previous parish priest Father Osborne had been advised by the company that access to the loft space should be restricted because they had identified a health and safety risk of being in that area. As a result of that advice Father Osborne ensured that the door at the bottom of the staircase was locked and that the key at that time was hidden. Initially the key was hidden within the first aid box sited along the corridor from the door. Father Osborne then said that the location of the key was known only to himself and to Mr Duffy. Access to the high roof was used for the purposes of tidying gutters or fixing roof leaks. The loft area would give access to turn water on or off at the bulk water tank and that was a feature that both he and the late Mr Duffy knew.
When Father Campbell took over as parish priest in 2013 he moved two sets of keys for the stairway door to a cupboard within the chapel house. Father Campbell knew that there was a third set of keys which Mr Duffy had and was in the habit of storing above an electrical box within the church. Mr Duffy had use of the key to allow him to access the external roof space in order to tidy gutters.
In February 2015 the company raised the issue of access to the loft space with Father Campbell. He was told that no one should access the loft space and that the keys should be secured. After that inspection Father Campbell told Mr Duffy not to go into the loft space and to return his key to the locked cupboard in the chapel house. Father Campbell did not carry out any other checks to see if that request had been complied with. However, Mr Duffy still had a key to the locked cupboard in the chapel house and it would have been easy for him to access that cupboard and there to retrieve the key to the locked door providing access to the stairway leading to the loft space and high roof. Only Father Campbell, the housekeeper and Mr Duffy had access to the locked cupboard.
After Mr Duffy died he was found to be in possession of a set of keys that opened the loft space access door but it is not known whether he had accessed them via the cupboard in the chapel house or whether he had retained his original set of keys. Once Mr Duffy had opened the door he would have climbed a stairway which led upwards to the roof void. To the left at the top of the stairs there is an area which leads to the loft space and the water tank. There was nothing to prevent anyone accessing that space. It appeared from the investigation that Mr Duffy had moved along the walkway which was there and had then either fallen off the end of the walkway or inadvertently stepped onto the roof tiles. The roof tiles were not weight bearing and were in a fragile condition. Mr Duffy then fell through the roof onto the floor of the church some 50 feet below.
Photographs were produced of the cupboard within the chapel house where the keys to the restricted access door were kept. This is no more than an under stairs cupboard. There is a key board with hooks with a number of keys hanging there. It appears that the keys were not fully secured in any way. It is accepted that only Mr Duffy, who was a keyholder, the parish priest and the housekeeper had access to that cupboard.
The offender in this case failed to put in place sufficient control measures to secure the keys and thereby prevent access to the loft space in such a way that Mr Duffy was not exposed to the risk of such an accident occurring.
Since the incident however the Trustees have taken immediate steps to control the risk and the door at the bottom of the staircase is kept locked and the keys secured. A wall has also been erected at the landing leading to the loft space which completely prevents access to the dangerous area from where Mr Duffy fell.
I was referred to the guidelines which have been produced by the Sentencing Council in England in 2016. The use of these guidelines has been approved in Scottish Courts as a cross check.
The guidelines first of all require that the Court determine the level of culpability. Counsel for the offender urged me to accept that the category of culpability was low since, in terms of the regulations, significant efforts were made to address the risk although they proved to be inadequate on this occasion. The medium category refers to circumstances where the offender falls short of the appropriate standard in a manner which falls between the descriptions of high and low culpability.
I consider that in this particular case the level of culpability was a medium one. The efforts made to address the risk were insufficient. The keys were left in a cupboard to which Mr Duffy and others had access. He had been asked to return his keys but no steps were taken to implement that system and nothing was done to see if the keys had in fact been returned. In my view greater efforts should have been taken to ensure that the keys could not be accessed by an individual on his own.
The next step in the guidelines is to assess the harm category. I was asked to accept that the harm category in this case is clearly at Level A since Mr Duffy sadly lost his life. That level is then divided into three categories. I was asked to accept that this was a medium likelihood of harm but to thereafter consider that in the particular circumstances that level of harm could be reduced to a low level. One of the factors to be considered in this case was that access to the key had been reduced to only three persons. Mr Duffy had also been told not to access the loft space. That therefore did reduce the likelihood of harm and I am prepared to consider that there was a low likelihood of harm and that the harm category should correctly be three.
I require to consider the detailed accounts for the Archdiocese of Glasgow which are complicated and I was assisted in the interpretation of these accounts by the submissions by counsel. The manner in which the guidelines are framed relate to commercial organisations which clearly the Archdiocese of Glasgow is not. I have considered the figures relating to income of the Archdiocese and I am satisfied that the appropriate classification in terms of the guidelines is of a small organisation with what is referred to as a ”turnover” between two and ten million pounds per annum.
Applying all of these categories to the guidelines gives a starting point for a fine of £24,000 with a total range of the fine between £12,000 and £100,000. Obviously these figures are only guides and can be adjusted taking account of a number of factors submitted in mitigation.
The Trust has no previous convictions and has taken a responsible attitude to health and safety by employing an appropriate company. The Trust took advice from the company and tried to establish a sufficent system which proved to be inadequate. The Trust had fully co-operated with the investigation and had taken steps to block off the area in question.
The legislation covering this particular matter only provides one penalty which is an unlimited fine. That in no way will ever reflect the loss of Mr Christopher Duffy to his family and friends which is incalculable. Sadly following Mr Duffy’s death his wife also died and I had the benefit of a victim impact statement from his family. His loss is felt keenly by them all and they were represented in court by one of his five children. Very properly sympathy was extended to them by the Crown and by Counsel on behalf of the Archdiocese. The Court also extends condolences to them.
In selecting the level of the fine I am satisfied that the Trust fully understand the need to comply with health and safety legislation. The fine, however must reflect the extent to which the offender fell below the required standard. I accept that the impact of the financial penalty will affect the ability of the Trust to meet its purposes as set out above.
The accounts produced are consolidated accounts and include funds belonging to the Mungo Foundation which became a wholly independent charity on 24 June 2020. While the Archdiocese does hold a substantial amount of funds some of those funds are ‘restricted’. The notes to the accounts explain that, “Restricted funds are subjected to restrictions on their expenditure imposed by the donor or through the terms of an appeal”. Unrestricted funds held as at 31 March 2020 was £811,698. Counsel submitted that in reality the Archdiocese operates in overdraft. I was also asked to take the strain caused by the Covid-19 pandemic which has resulted in a diminution of income of around 35%, into account.
In all the circumstances taking the starting point for the fine as £24,000 I consider that I can limit that to £20,000 on account of the mitigatory factors outlined.
I then require to modify that fine to reflect the timing of the plea in terms of section 196 of the Criminal Procedure (Scotland) Act 1995. The utilitarian value of an early plea of guilty which has avoided a trial must be reflected. I will allow the standard modification of one third. The fine will therefore be £13,400. I am satisfied that the Trust will be able to make payment at that level within 12 months which I shall allow for payment.”
6 July 2021