Locally, Scottish case law provides that the Courts should use the Sentencing Guidelines for Health and Safety Offences by the Sentencing Counsel in England and Wales^[1] as a cross check when determining their own sentences. In practice, the Scottish Courts are instead routinely applying the guideline, and sentences appear to be falling directly in line with the English and Welsh framework.

This Guideline directs the court to assess:-

• The culpability of the company's conduct;
• The seriousness of the harm risked by the offence;
• The number of people exposed to the risk, and whether the offence caused any actual harm.

The range of financial penalty is then determined by the particular size of the organisation in terms of its turnover.

The following sentences are some recent case examples from the HSE's website found in their "Public Register of Convictions", and the Judiciary of Scotland's case publications; demonstrating that when compared to previous years, fines imposed are certainly on the rise, but are about as consistent as a Scottish Football Association referee or a 6 Nations TMO. Let's have a look at the range of penalties for 2023.

R v Exolum Pipeline System Limited (March 2023)

Exolum a national pipeline transportation company with an average Turnover of £80 million were convicted of two offences under Section 2 and Section 3 HSWA 1974, following a Trial at Grimsby Crown Court. Exolum failed to demonstrate that it had put in place all the necessary controls and measures, insofar as reasonably practicable, to prevent employees from being exposed to risk of serious injury and death while conducting excavation works on a leaking pipeline containing petrol whilst it was under pressure. The court ultimately imposed a fine totalling £2.3 million.

HMA v BP Exploration Operating Company Limited (July 2023)

The global oil giant's accounts posted a turnover for year end 2022 at a whopping $3.3 billion. An employee of the petroleum company tragically fell to his death at their Unity offshore oil installation in the North Sea. He was carrying out routine maintenance work when he fell through an open grating on the lower deck of the oil rig. Following an 8 day Trial at Aberdeen Sheriff Court, the jury returned a majority verdict that found BP guilty of a charge under Section 3 of the HSWA 1974. The court imposed a fine of £650,000.

HMA v Repsol Sinopec Resource Limited  (August 2023)

Repsol Sinopec are a UK oil and gas exploration and production company operating in the North Sea, and the UK Continental shelf. In 2022, the crude oil operator generated an substantial turnover in excess of $1.4 billion. Following the uncontrolled collapse of a crane boom on its Fulmer Alpha North Sea oil platform, employees of an onsite contractor sustained serious physical and psychological injuries. The company pled guilty to breaches of Section 2 and Section 3 of the HSWA 1974 for failing to carry out a suitable risk assessment, and failing to maintain the crane braking systems and equipment in a safe condition. The company was fined £535,000.

HMA v Network Rail Infrastructure Limited (September 2023)

Network Rail had a turnover figure of £10 billion for 2023. This high profile case concerned the disastrous Stonehaven derailment incident. ScotRail's Aberdeen to Glasgow Queen Street passenger service hit a landslip, following severe rainfall resulting in 3 fatalities. Network Rail were responsible for the maintenance and inspection of trackside drainage assets. The company pled guilty to failings to ensure that drainage works had been carried out correctly, which ultimately led to the deaths. Given the severity, the case was dealt with at the High Court in Aberdeen. Lord Matthews imposed the second highest ever fine in Scotland (and Great Britain), a staggering £6.7 million.

R v Newport City Council (December 2023)

The Local Authority's Road Works Team were carrying out a schedule of road resurfacing repair works when one of their employees was fatally struck by a passing farm vehicle. The Council pled guilty to two charges under Section 2 and Section 3 of the HSWA 1974 at Cardiff Crown Court. The Court imposed a fine of £2 million for failings in relation to organising a safe working environment by ensuring there was a suitable and sufficient safety zone between the road works area and the live part of the carriageway, and suitable traffic management systems.

The message to major companies who enjoy significant levels of turnover and high profit figures to large publicly owned organisations is clear – the courts in Scotland, and the rest of the UK, are not reluctant to impose substantial, hard hitting fines. Penalties imposed on major industry players can now see routine 6 and 7 figure fines imposed. This reinforces the over-riding sentencing objectives in health and safety cases that offending companies must achieve a safe working environment for employees and the public; the fine is sufficient enough to bring that message home to company directors and shareholders; and to act as a strong deterrent to duty holders.

In short, the increasing red tape around Health and Safety continues to place more and more obligations on companies to ensure safe working procedures and environments are maintained, and continuously improved. Companies who take their eye off the ball or who don't make an ongoing commitment to ensure the highest safety standards at all times, do so at their own financial peril! So I'll ask again, are you suitably managing your risks?

Contact us

Alasdair specialises in the defence of Health & Safety prosecutions and investigations, amongst other regulatory fields and compliance offences across various sectors and disciplines. For legal advice and representation, contact Alasdair who is part of the largest Regulatory SHE Advisory Team in Scotland here at DAC Beachcroft.

[1] Scottish Power Generation Ltd v HMA 2017 JC 85