His Majesty’s Advocate v. Linbrooke Services Limited [2023] HCJAC 31

Crown appeal against sentence:- On 30 March 2023, following a trial on indictment at Dumbarton Sheriff Court, the appellants were found guilty of three charges relating to the death of an employee, Matthew Mason, on 5 June 2018, after he fell from a step ladder whilst installing longline public address system equipment:- (1) a contravention of Regulation 3(1) of the management of Health and Safety at Work Regulations 1999 and sections 15 and 33(1)(c) of the Health and Safety at Work etc Act 1974; (2) a contravention of Regulation 4 of the Work at Height Regulations 2005 and section 33(1)(c) of the Health and Safety at Work etc Act 1974; and (3) a contravention of Regulation 6(4)(b) of the Work at Height Regulations 2005 and section 33(1)(c) of the Health and Safety at Work etc Act 1974. On 15 May 2023 the trial sheriff imposed a financial penalty of £750,000 comprising of two parts- (a) compensation to the deceased Mr Mason’s parents of £200,000; and (b) a fine of £550,000 to be paid by the company. The appellant appealed against his sentence on the grounds that it was excessive (albeit the submissions sought to reduce the financial penalty imposed against the company rather than any reduction in the grant of compensation to the deceased’s parents) and submitted that:- (1) the deceased had attached the “Fish” wire to the cable in a wholly inappropriate manner, presumably because it was quicker and the company could not reasonably have foreseen that he would behave in the way he did and the court should, unusually, take his conduct into account; (2) whilst strictly speaking the company could be categorised as large, when compared to other companies in the same field it was relatively small and the sheriff had imposed a disproportionate fine in reaching the conclusion he had; and (3) the sheriff had double counted in relation to the deceased’s death by making reference to distinguishing between fatal and non-fatal cases after already applying the English sentencing guideline in relation to his assessment of culpability and the risk of harm as, in effect, the distinction between fatal and non-fatal cases had already been factored into the calculation at the stage of judging the seriousness of the harm risked and the assessment at level A under reference to the English sentencing guideline. It was further submitted that the company continued to acknowledge the impact of the death of a young man, had built a memorial to him, had made substantial contractual death in service payments and remained on good terms with the deceased’s family. Here the court, following a review of the available CCTV of the incident, considered that the case was not the type of exceptional case where the employee’s actions should have a bearing on the level of financial penalty as it could not be said that the accident was not reasonably foreseeable in light of the various failures and the accident was a direct consequence of them. The court also considered that the sheriff was correct to categorise the company as a large one for the purpose of looking to the English Guideline to check the broad range of fines that might be appropriate. In relation to the third part of the submission advanced on the part of the company the court considered that the sheriff had erred in that he had already taken into account the nature of the breaches when assessing the seriousness and likelihood of harm and the figure selected did appear to include an element of double counting. The court allowed the appeal to the extent of quashing the fine of £550,000 and replacing it with a fine for £400,000 (the Compensation Order was not interfered with).