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HMA v D Copeland Engineering Ltd
Sep 30, 2021
On sentencing the Sheriff made the following statement in Court:
“The accused in this case, a limited company, has tendered a plea of guilty by virtue of which it is accepted that it failed to ensure the health, safety and welfare of all employees, and in particular, as far as is reasonably practicable, the provision of systems of work that were safe and without risk to health, in that it did fail to provide and maintain a safe system of work for turning and supporting of dolphin jackets then being fabricated and welded by employees, whereupon on 23 June 2017 a dolphin jacket did move in an uncontrolled manner and employees were exposed to the risk of injury and the complainer was trapped beneath the dolphin jacket to his severe injury, permanent disfigurement, and permanent impairment.
In selecting my sentence, I have had regard to the Scottish Sentencing Council’s guidelines on the sentencing process and the principles and purposes of sentencing. I also note that the appeal court in Scotland has approved use of the guidelines issued by the Sentencing Council of England and Wales for cases such as this. I am, however, aware that I must not approach these guidelines in a manner which is too rigid or mechanistic. Rather, it is available as a means of “cross-check” on the sentence reached.
Beginning with an assessment of the nature and seriousness of the offence, I must look at the culpability and the harm caused, or which might have been caused, by the offence. In doing so, it is clear that the company fell short of the appropriate standard. I have been advised that systems were in place but the planning process for devising these systems was deficient, ultimately leading to inadequate protection which itself was not properly implemented or adhered to.
In terms of harm, the complainer has suffered particularly severe life-changing injuries. The impact on him personally is profound. He has had to endure the traumatic experience of loss of lower limbs, he has to live with chronic pain (with all the consequences that entails) and he can no longer work at his chosen trade. There is a wider impact on society since I am told that he was someone who was accomplished in his line of work and we have all now been deprived of his talents and contribution in that regard. There is no doubt the risk of greater harm was present both to the complainer and others as more than one person was exposed to that harm. The other worker present was very fortunate in that he was able to jump clear of the accident.
That leads me to the view that the company's culpability is in the medium range but that the level of harm is high. I am confirmed in that view when I cross-check this assessment with the relevant guidelines of the Sentencing Council of England and Wales. In this case, parties have invited me to specific views in terms of these guidelines. Whilst in some sense this case does not sit comfortably in either Level A or Level B of the guidelines in terms of harm, taking a broad approach which is not too rigid or mechanistic, I am satisfied that a sentencing range in line with what those guidelines describe as a medium level of culpability and harm category 2 is appropriate.
This characterisation combined with the financial information provided by the legal representatives of the company as well as the relevant authorities in this regard allows me to identify the starting point of any sentence. However, it seems to me, given the particularly serious and severe impact on the complainer, that this case attracts a starting point in the upper end of the appropriate sentencing range. That is, however, mitigated by the absence of any relevant previous convictions, the steps taken to remedy the problem, co-operation with the investigation and an otherwise good health and safety record. I have also taken into account the lengthy period of time it has taken for this case to be brought to court.
This taken with a regard to the principles and purposes of sentencing allows me to select a headline sentence. That sentence has to be fair and proportionate and no more severe than is necessary to achieve the purposes of sentencing in a case such as this.
Nonetheless, I am of the view, for all of the reasons set out and to bring home the need to comply with health and safety legislation, that I must impose a substantial financial penalty in this case.
Had it not been for the plea of guilty, I would have fined the accused £37,500. I modify that fine to £25,000 for the timing of the plea.”
30 September 2021