His Majesty’s Advocate v. Tigh-Na-Muirn Ltd [2023] HCJAC 30

Crown appeal against sentence:- On 2 May 2023, at Dundee Sheriff Court, the respondent company pled guilty to an indictment via the accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to a charge of contravening sections 3(1) and 33(1)(a) of the Health and Safety at Work etc Act 1974 following the death of a resident after he ingested a quantity of liquid (a bottle of ammonium based cleaning liquid) which was placed beside toiletries on top of a cabinet above the sink in the bathroom and in consequence he developed acute severe inflammation in his airway and pneumonia and died. On 10 May 2023 the sheriff imposed a financial penalty of £30,000, which was discounted by one third to £20,000 on account of the early guilty plea. In addition, a victim surcharge of £1,500 was payable. The Crown appealed against the fine imposed on the ground that the sentence was unduly lenient. It was recognised on behalf of the Crown under reference to HMA v Bell 1995 SCCR 244 that for the appeal to succeed it must be shown that the sentence imposed fell out with the range of sentences which a sheriff at first instance, applying her mind to all the relevant factors, could reasonably have considered appropriate. It was submitted that the sheriff had erred in her assessment of the respondent’s culpability and in categorising it as low there had been a failure to give adequate weight to the seriousness of the offence and the exposure of risk presented to the residents of the care home, in particular, to a vulnerable, confused and isolated resident like the deceased. On behalf of the respondent it was submitted that the sheriff had properly considered all of the relevant factors in selecting the figure she had. Here the court had regard to the applicable law and the principles summarised in Scottish Sea Farms Ltd v HMA 2012 SLT 299 at paragraph 18:- (a)  where death occurs as an consequence of the breach, that is an aggravating feature, multiple deaths being viewed even more seriously than single deaths; (b)  a breach with a view to profit is a serious aggravation;  (c)  the degree of risk and extent of the danger and in particular whether this was an isolated incident or one continued over a period; (d)  mitigation will include (i) a prompt admission of responsibility; (ii) steps taken to remedy deficiencies; and (iii) a good safety record; and (e) the resources of the offender and the effect of a fine on its business are important and any fine should reflect the means of the offender. The court stated that the Scottish Sea Farms case approach is reflected in the English Guideline and, as such, whilst the guideline is available as a helpful cross check on Scottish precedent it out not be applied mechanistically. Here the court considered that the sheriff had focussed too heavily in her assessment of culpability and failed to adequately reflect the degree of risk and extent of danger, with particular reference to whether this was an isolated incident or continued over a period, in that the sheriff had given insufficient weight on the period of the libel of two and a half months in which the company breached a standard by failing to ensure that residents were protected from any risk of ingesting hazardous substances by keeping these in a locked cupboard. The court considered that the sentencing sheriff was wrong to view the breach as isolated rather than a continuing one which led to the imposition of an unduly lenient sentence. In the circumstances, notwithstanding that the care home was faced with the challenges of the early months of COVID at the time, the court considered the assessment of culpability as at least medium and the ongoing failure to assess the obvious risk of changing a system of locking away a hazardous substance and placing it within reach of residents was serious. Further, while the sheriff was correct to regard the harm as no higher than Category 2, the court considered it to be towards the higher end of that category. The court quashed the sentence and substituted a fine of £60,000, discounted from a starting point of £90,000 to reflect the early plea.