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HMA v The Richmond Fellowship Scotland
May 26, 2022
On sentencing, Sheriff Principal Turnbull made the following statement in court:
"At some point between 1 am and 7 am on the morning of 10th June 2016, Margaret Glasgow, a 59 year old lady with severe learning difficulties who had 4 weeks earlier moved to the Richmond Fellowship’s supported accommodation at Cherry Tree Court, Cambuslang, without the knowledge of the support workers assigned to work within the courtyard where she lived, got out of bed, entered her bathroom, placed the plug within the bath, turned on the bath taps, filled the bath with water and climbed into the bath where she drowned.
By their verdict, the jury have found established what can only be described as a catalogue of failures on the part of The Richmond Fellowship between 3 December 2015 and 10 June 2016:
- They failed to have a suitable plan in place to manage Margaret’s move from the care centre where she previously lived to Cherry Tree Court;
- They failed to ensure that the support practitioners who would be caring for Margaret were given an opportunity to have regular visits with her prior to the move;
- They failed to carry out a suitable and sufficient assessment to identify Margaret’s needs and the measures required to ensure, as far as reasonably practicable, Margaret’s safety prior to becoming a resident within Cherry Tree Court;
- They failed to have in place a system of work to ensure that all support practitioners tasked to work within the courtyard where Margaret lived were made aware that the water to Margaret's flat required to be turned off at the main after Margaret had settled in bed each evening;
- They failed to provide suitable and sufficient instruction to support practitioners tasked to work within the courtyard where Margaret lived to ensure that they were aware of the location of the water main and the correct procedure for turning the water off;
- They failed to ensure that support practitioners were given specific instructions to ensure that they had sufficient knowledge to carry out appropriate checks and/or observations on the residents under their care, such as Margaret;
- They failed to produce an individual check sheet with all relevant information pertaining to the care of Margaret; and
- They failed to provide suitable or reliable equipment to alert support practitioners to movement within Margaret's flat;
Moreover, by their verdict, the jury were satisfied that each of those failures caused or materially contributed to Margaret’s death.
Since September 2021, all courts in Scotland are required to follow the Scottish Sentencing Council guideline “The sentencing process”.
The first step of that process is to assess the nature and seriousness of the offence. The seriousness of an offence is determined by two things: the culpability of the offender and the harm caused, or which might have been caused, by the offence. As either or both culpability and harm increase, so may the seriousness of the offence.
In the present case, the harm caused could not have been greater – as a consequence of the failures I have narrated, Margaret Glasgow lost her life.
In assessing the seriousness of a particular offence, the court must also have regard to any applicable sentencing guideline which lists any factors relevant to the consideration of culpability and harm. As yet, there is no such guideline in Scotland in respect of health and safety offences, however, the court is permitted to have regard to, and has been referred to, the applicable definitive guideline produced by the Sentencing Council for England and Wales, namely, that from 2016.
It is now well understood that the England and Wales definitive guideline should not be used in a mechanistic or formulaic fashion, however, it does provide a useful cross-check, especially in cases such as the present one where the offence is regulated by a UK statute.
With reference to that guideline, counsel for The Richmond Fellowship submitted that the appropriate culpability factor to be applied in all the circumstances is “low”.
I reject the submission that the degree of culpability falls within the low category. In my assessment, it does not. The offence was committed through a series of failures, over a not insignificant period of time, which a person exercising reasonable care would not have committed. A fair assessment of The Richmond Fellowship’s culpability is that it falls within the medium category.
In the circumstances found established by the jury, and having had the benefit of hearing evidence over 11 days, my assessment is that this case is one in which there was a medium likelihood of harm. This being a Level A case (in terms of the seriousness of harm risked) the case therefor falls within what the England and Wales guideline refers to as “Harm category 2”.
In each of the last 3 years for which financial statements are available the income of The Richmond Fellowship has grown as has the surplus, culminating with income of £90.58 million; and a surplus of £8.18 million in the year to 31 March 2021.
For a large organisation, that is one with a turnover or equivalent in excess of £50 million per annum, the starting point in a Harm category 2 case is a fine of £600,000, with a sentencing range of £300,000 to £1.5 million.
I require to identify aggravating and mitigating factors. Both are present in this case.
The death of Margaret Glasgow is accepted as an aggravating feature, however, as this factor has already formed part of the determination of the seriousness of the case, I have no regard to it at this stage – to do so would be to “double count”. I do, however, have regard to the fact that Margaret Glasgow was a vulnerable person whose care was entrusted to The Richmond Fellowship.
In terms of mitigating factors there was full co-operation with the investigating authorities; the company has no previous convictions; and there was a wide reaching review that led to the taking of a number of steps to address the issues raised in this tragic case. In this regard, I place some weight upon the evidence of the HSE inspector who stated that the measures taken by the Richmond Fellowship allayed any fears she had that such a tragic accident might happen again.
In determining the headline sentence the court must also have regard to the Scottish Sentencing Council’s guideline ‘Principles and purposes of sentencing’. Amongst other considerations, sentences should be no more severe than is necessary to achieve the appropriate purposes of sentencing in each case.
The purposes of a sentence may include a number of things, one of which is expressing disapproval of offending behaviour. The expression of such disapproval is all the more appropriate where an organisation entrusted with the care of a vulnerable person fails to ensure that person’s safety to such a degree that the person dies.
After consideration of all of the matters I have referred to, and from a consideration of the Scottish authorities I have been referred to, I have concluded that a headline sentence of a fine of £450,000 is both fair and proportionate and is no more severe than is necessary to achieve the appropriate purposes of sentencing in this case.
The fine is to be paid in 28 days and is recoverable by civil diligence in default of payment."