SENTENCING STATEMENTS

Sheriff Fleming made the following comments in delivering sentence:

“Crown Narrative

This case arises from a terrible event which took place at 4.15 pm on Tuesday 20 June 2023 when Mr Colin Shaw, a schoolteacher, was doing no more that standing conversing with work colleagues near to the school at which he worked.

This incident occurred at Bellshaugh Road, at its junction with Kirklee Gardens and Cleveden Drive, in the Kelvinside area of Glasgow. A main school building is located nearby, with school annexes also located in the vicinity. The area is therefore busy with adult and child pedestrians and vehicular traffic, particularly during the course of a school day.

Mr Shaw was standing near to a lighting column. One of Mr Shaw’s colleagues noted the column falling towards the ground. Despite his colleague’s warning Mr Shaw was unable to avoid the falling lighting column which struck him from behind, knocked him to the ground and pinned him face down, partly between the footpath and the roadway into Kirklee Gardens.

The cables which had remained attached to the top of the column when it fell were accidentally caught by at least one passing car on Bellshaugh Road. That resulted in the column being dragged over Mr Shaw, keeping him pinned beneath it. Thereafter another motor vehicle also inadvertently caught the attached cables which resulted in the column being dragged off Mr Shaw.

The street lighting in this area comprises tubular steel lighting columns, connected by overhead cables. At its uppermost section, the column was connected to other columns on Bellshaugh Road by overhead cables.  The column was approximately 26 feet in height, most of which collapsed. The collapsed section is estimated to have weighed a minimum of approximately 250 kilograms (¼ of a ton). The column and embellishment at its base had collapsed as one, leaving a short section of the column shaft base, still embedded in the footpath.

Mr Shaw sustained severe, life-threatening and life-changing injuries, for which he continues to receive medical treatment. The court was advised of the detail of these o the last occasion.

Mr Shaw underwent a number of surgeries for treatment of his injuries.

Prior to this incident Mr Shaw, a military veteran, retained a high level of fitness and had a very active lifestyle, which included regular hill walking and leading a section of army cadets. Mr. Shaw reports significantly disturbed sleep and flashbacks of the incident. His wife has reduced her working hours to assist with his day-to-day care.

This incident and the impact of the injuries Mr Shaw sustained have also had a significant detrimental effect upon his mental health, for which he has received psychological treatment and support. Mr Shaw’s recovery continues.

The court takes this opportunity to express its sympathy to Mr and Mrs Shaw. This incident has clearly altered both of their lives. I had the opportunity on the last occasion to express the court’s sympathies directly to Mrs Shaw who sat throughout proceedings and listened to what must have been a singularly upsetting narrative with commendable fortitude and dignity.

There is no sentence that this court can pass which will compensate for the life changing injuries suffered by Mr Shaw. If there is to be compensation that will be determined in another forum. I hope that conclusion of this court case may provide them with some small measure of solace and closure.

In considering sentence I consider the terms of the charge, and the careful narrative of the relevant circumstances. I have also had regard to everything said in mitigation on behalf of Glasgow City Council by Mr Smith KC.

The charge is brought under sections 3 and 33 of the Health and Safety at Work etc Act 1974 and therein it narrates the failures of the Council in carrying out its statutory duties.

It is now known, following an investigation carried out by the Health and Safety Executive that the lighting column had structurally failed and collapsed as a direct consequence of severe corrosion of the shaft of the column, near to its base, and a loss of cross-sectional area and strength of the shaft. The surface corrosion of the steel had been ongoing for a considerable number of years. The column which collapsed was one of around 9,000 lighting columns across Glasgow, at the time of this incident, categorised as being in ‘poor’ condition.

During the last inspection of the lighting column in 2022, Glasgow City Council identified that the column was in poor condition and required to be replaced. It had been scheduled for replacement in April 2024. Lighting columns such as this are in place throughout Glasgow have an expected service life (‘ESL’) of between 20 to 25 years. The column which collapsed was well over twice its ESL period, at the time of this incident. It was not due for renewal for another 10 months.

The inspection regime undertaken by the Council failed to identify the extent of corrosion on the lighting column and, given the significance of the extent of corrosion present, the immediate risk of failure of the column. The visual inspections undertaken were inadequate in not correctly identifying the condition of the lighting column, the risk of collapse and the action to be taken.

The Council did not follow established industry guidance, which was cited in its own lighting maintenance manual, by not prioritising the removal of lighting columns assessed as being in poor condition.

The Council has a previous conviction from 2013 arising from a fatal council vehicle collision with a member of the public. The Council was fined £20,000. It also has a previous conviction from 2002, relating to a failure to control the spread of asbestos, to which workers and members of the public were exposed. The Council was fined £5,000.

Soon after this incident occurred, the Council commenced its own investigation, into the circumstances. Other similar lighting columns with base embellishments, that remained in place around Glasgow, were removed.

In May 2024 the Council confirmed to HSE various further extensive measures it had taken to address the issues which gave rise to this incident. 

HSE responded to acknowledge the measures already taken or being taken and highlighted the need for the Council to obtain increased funding, to address the removal of lighting columns assessed as being in poor condition. 

Mitigation

In mitigation Mr Smith explained to the court the source of the Council’s revenue and submitted that like all other local authorities the Council has faced a period of change, most notably a period of sustained financial austerity in tandem with increased demand on Council services, which has posed considerable challenges.

A recent set of accounts was produced.

It was acknowledged that the Council has two analogous previous convictions, dating from 2002 and 2013. It was submitted that both arise from wholly dissimilar circumstances. The former is now of 23 years ‘vintage and the more recent dates from 12 years ago. Given the nature and scale of its operations, it was submitted that in the context the court might give little weight to these matters and consider the Council to have a good – if not unblemished – safety record.

It was emphasized that the Council places considerable importance on the health and safety of all of its employees, members of the public and others affected by Council undertakings and has a highly developed health and safety management system. This includes an accident reporting system developed in consultation with employees and Trades Unions.

The Council’s Lighting Establishment unit is responsible for 74,490 street lighting columns across the city.

Whilst the breach here clearly discloses a failure in respect of this particular lighting column, this isolated lapse should not impugn the effectiveness of the safety management systems of the Lighting Establishment or Council as a whole. The Council operates a wide range of services and premises – with a complex and varied risks to be managed – safely and effectively. In this case, the column had been scheduled for replacement in 2023/24 as part of the routine programme of replacement.  Over £13.6million invested in lighting infrastructure since 2014.

The court was invited to accept that the Council responded appropriately and responsibly to this incident.

Further training was given and existing technicians assessed as competent in accordance with industry standards. Moreover, the Council has updated the inspection criteria for all lighting assets, to adopt a more detailed risk-based approach.

A dedicated inspection team has been established and an additional budget of £7.5 million has been allocated to replace all T4 lighting columns over the next three years.  The Council cooperated fully in the investigation by HSE and is determined to ensure no repetition.

Reference was made by Mr Smith to the decisions in HMA v Munro 2009 HCJAC 10 and in Scottish Sea Farms Ltd v HMA 2012 HCJAC 11and to the Sentencing Guidelines issued for Health and Safety offences by the Sentencing Council of England and Wales.

In particular, with reference to the relevant principles in the Scottish Sea Farms case the following submissions were made: the breach was not deliberate or calculated but rather occurred by omission. In considering the degree of risk and extent of the danger and whether this was an isolated incident or one which continued over a period it was accepted that the Council fell short of the required standard and that the breach subsisted for a period.

A prompt admission of responsibility and steps taken to remedy deficiencies occurred in this case and it was submitted that the Council has a good safety record.

The court was invited to regard the plea as one carrying considerable utilitarian value. An indication that the case could be resolved was given at an early stage and a trial has been avoided.

With reference to the English Sentencing Guideline Mr Smith submitted that the harm and likelihood of harm category ought to be assessed as being at “category 3.”  It was submitted that the appropriate culpability factor to be applied in all the circumstances is “medium.” It was submitted that having regard to aggravating factors that previous convictions notwithstanding, none of the other aggravating factors identified in the Guideline were present whereas almost all the factors reducing seriousness are present.

The Guideline requires the sentencer, to consider the wider impact of the proposed fine and where the fine will fall on public bodies, the fine should normally be substantially reduced if the offending organisation is able to demonstrate that the proposed fine would have a significant impact on the provision of its services.

In this case, the Council faces a forecast funding gap of some £107.7 million in the three years from 2024/27. Any significant financial penalty imposed by the Court is bound to influence the continuing ability of the Council to provide essential public services. 

Sentence

What occurred here was a deeply regrettable state of affairs, no doubt for the Council but much more so for the public who depend on the Council.

In sentencing cases involving breaches of health and safety legislation, the court is also directed to the judgment in Scottish Sea Farms Ltd which sets out the principles that judges should consider when sentencing in serious health and safety cases. This judgment confirmed that the principles set out in the earlier case of HMA v Munro should be followed and that it is appropriate for Scottish courts to refer as a cross check to the Sentencing Council Guidelines from England and Wales in respect of health and safety offences.

These guidelines provide a framework to assist the court in determining the appropriate levels of harm and culpability of an offence. In reaching a decision in this case, I have had regard to both of the Scottish cases mentioned and also to the guidelines from England and Wales.

Since 2021, when sentencing cases, courts in Scotland are required to follow the Scottish Sentencing Council Guidelines. The first step of the sentencing process requires an assessment of 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.

With regard to culpability I accept that the categorisation submitted by Mr Smith, namely medium, inasmuch as the Council fell short of the appropriate standard of conduct in respect of its undertaking. Insofar as harm is concerned the injuries sustained were serious, severe and life changing. I accept Mr Smith’s categorisation of the harm and likelihood of harm as being at Harm Category 3. There was impairment which has had a substantial and long-term effect on Mr Shaw’s ability to carry out day to day activities or to return to work.   

With regard to aggravating factors the sustained nature of the breach is properly recognised by Mr Smith as an aggravating factor. I also have regard to the Council’s previous convictions.

I am not persuaded by Mr Smith’s submission that the Council has a “good” safety record. It has 2 analogous convictions. Mr Smith placed weight on the size of the Council and the scale of its operations and while I accept that factual matrix its resources are structured accordingly. Were I to consider that the Council, which has two directly relevant previous convictions can be considered as having a good safety record due to its size that would mean that a smaller organisation in a similar position would be treated differently. I do accept that the passage of time since the Council’s commission of the previous offences is of relevance and I attach importance to that, but I cannot go as far as to state that the Council has a safety record of a high or good standard.  

I also consider that it is an aggravating feature that this offence took place near to a school building. At such a locus there is an increased likelihood of the presence of children.

While I take into account Mr Smith’s submission that this was an isolated, albeit subsisting breach of the legislation, it was serious and criminal and had significant consequences.

With regard to mitigation I take into account the significant remedial measures taken, and that there was a wide-reaching review that led to the taking of a number of steps to address the issues raised in this case, including the allocation of extra resources and the early acceptance of culpability. I also attach significance to the cooperation with the investigation and the other matters raised by Mr Smith.

I also consider the attendance of senior employees of the Council at court to be appropriate and indicative of the gravity with which they consider the case.

In determining the headline sentence the court must also have regard to the Scottish Sentencing Council’s Process and Purpose of Sentencing Guideline. 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 duty to provide care to community members fails to ensure a member’s safety to such a degree that a person’s life is endangered.

I have had regard to the English guidelines, although not in a formulaic or mechanistic way. The starting point within the English guidelines in a case such as this is to consider the Council as a very large organisation. As such it may be necessary to move outside the suggested ranges stipulated. There are important factors which contextualise the assistance of the stipulated ranges within the Guideline. 

The Guidelines themselves stipulate that where a fine will fall on a public body, it should normally be substantially reduced if the offending organisation is able to demonstrate that the proposed fine would have a significant impact on the provision of its services. That is a very significant factor in this case.

The Council requires to operate within challenging financial constraints while continuing to provide vital and essential public services. Whatever fine this court imposes must be paid from the Council budget and therefore a fine in the range indicated in the Guidelines would have a significant impact on the provision of services. The pressures faced by the public authorities are well understood by the court and by the public at large. Such a detrimental impact has been demonstrated in this case.

In considering sentencing it must be recognised that no two cases are identical and each case has to be considered on its own facts and circumstance. Assistance in determining the appropriate sentence is derived from previously decided cases.

Looking to the culpability, likelihood of harm and actual harm together with the aggravating and mitigating factors present and to the circumstances of the Board in terms of their funding, the invaluable services they provide to the population they serve and the effect any fine will have, I am satisfied that a headline sentence of a fine of £120,000 is appropriate to achieve the aims of punishment, protection of the public and an expression of disapproval of the offending behaviour. 

The court is required by law to take into account the stage in the proceedings at which, and the circumstances in which, the offender indicated their intention to plead guilty. In essence, the Board submits, and the Crown accepts, that the plea in this case was tendered at the earliest possible opportunity.

I will give effect to that by reducing the headline sentence to a fine of £80,000. The fine is to be paid within two months and is recoverable by civil diligence in default of payment.

As the offence was committed after 25 November 2019 a victim surcharge is to be applied. That surcharge is 7.5% which is £6000.”

8 January 2026