Ruling confirms relevance of health and safety sentencing guideline in Scotland

Kevin Bridges of Pinsent Masons said appeals against sentences for health and safety failings in Scotland were relatively rare. “In this case the appeal court held that the sentencing Sheriff had adopted an approach that was not dissimilar to that under the definitive guideline in reaching his conclusion and had correctly assessed the various steps in it. Had the Appeal Court not done so, things may well have been different.”

The case before the Appeal Court (16 pages / 533KB PDF) involved St David’s Care, a care home in Forfar, after it pled guilty of health and safety failings that led to the death of a resident in January 2017. The court heard that an alarm on the fire door in the dining room of the St David’s care home in Forfar had been disabled, allowing resident Georgina Norrie to leave the building in the early hours of the morning unnoticed. Norrie, who had dementia, was then locked out and consequently died from hypothermia. 

The Sheriff court ruled that the care home had failed to provide effective arrangements to prevent residents from leaving the care home without alerting staff to their movements. As a result, St David’s Care was fined £100,000 – discounted from £150,000 because the company pled guilty.

St David’s Care appealed the level of fine, arguing that the Sheriff erred by not applying the definitive guideline issued by the Sentencing Council for England and Wales and applicable to sentencing there for on health and safety, corporate manslaughter and food hygiene offences.

Cameron said: “Despite the care home’s argument, there was nothing in the Sheriff’s approach that was materially inconsistent with the definitive guideline. Indeed, when the definitive guideline was used as a cross-check against the sentence imposed by the Sheriff, the fine selected was broadly in line with the level of fine recommended by the definitive guideline for similar cases.”

The appeal from St David’s Care was unsuccessful, and the Appeal Court held that although the sentencing Sheriff did not base his approach explicitly on the DSG – he was not bound to do so. It said that this was particularly the case because the guideline had not been relied upon by St David’s Care at the sentencing diet. The Appeal Court added that the Sheriff had correctly applied the guidance contained in two authoritative Scottish cases from 2009 and 2012.

Cameron said: “It is interesting too that, as is the case in England and Wales, the Appeal Court in Scotland did not wish sentencing Sheriffs to take an inflexible ‘mechanistic’ approach to the definitive guideline. Instead, it confirmed that it should be used as a ‘broad cross-check against the sentence that would be considered appropriate according to current Scottish sentencing practice’.”