Appeal against £100,000 fine for care home breach of health and safety law refused

In St David's Care Forfar Ltd v HM Advocate, a company which operated a privately owned care home, appealed against the sheriff's imposition of a £100,000 fine, discounted from £150,000, following its guilty plea to breaching the Health and Safety at Work etc. Act 1974.

The care home housed 22 residents and the charges arose from the death of an elderly, frail and vulnerable female resident who suffered from inter alia dementia, after she was able to leave the home unnoticed following the de-activation of an alarm on a fire door whereby she was locked outside.

The appellant submitted the fine was disproportionate and that the sheriff had given insufficient weight to the mitigating factors.

In this case the judge concluded that the fine was not excessive and that the sheriff has analysed all the relevant features of the case and come to a well-reasoned conclusion.

The sheriff had assessed the level of culpability in light of several indisputable aggravating features, in particular that the:

• failure properly to assess risk led directly to the residents death;
• deceased was a highly vulnerable person for whose specialised care in a safe environment the appellant was wholly responsible;
• appellant failed adequately to address the obvious risks to her safety of leaving her room at night;
• fact that the absence of an alarm on the fire door was, on any reasonable assessment, a gross failing.

The sheriff had taken full account of all the mitigating considerations, and in selecting the level of fine had adopted a nuanced approach based on a sound analysis of the appellant's financial position given the limited information provided to him.

Another consideration for the judge was whether the sheriff had applied the Definitive Sentencing Guideline issued by the Sentencing Council for England and Wales. The sheriff had not applied the guideline, but was not bound to do so, particularly since it was not relied upon by the appellant at the sentencing diet.

Nevertheless, there was nothing in the sheriff's approach that was materially inconsistent with the guidelines. The level of the appellant's culpability would have assessed at being at least high, and possibly very high, taking into account:

• the arguably deliberate breach of, or flagrant disregard for, the law by failing to ensure that an obvious safety measure was working;
• since the bedroom sensor was also de-activated, there was nothing to alert the carers on duty that the deceased had left her bedroom, gone to the dining room, and used the dining room fire door to leave the building;
• there was a significant risk that the deceased would behave in such a manner, as the appellant was, or should have been, well aware.

In regards to the sentencing guideline steps:

• looking into the factors referred to in step one of the guideline, the appellant at least fell far short of the appropriate standard by failing to put in place safety measures that were recognised standards in the industry, and the seriousness of the harm risked by the appellant's breach would clearly be categorised as being at level A since it directly caused the residents death;
• step two required the court to focus on the organisation's annual turnover to reach a starting point for a fine, and in the case of a micro-company such as the appellant, the starting point for a high culpability offence in Harm Category 1 was £160,000 with a category range between £100,000 and £250,000, and the headline sentence selected by the sheriff fell squarely within that range;
• step three and four allowed the court to step back, review, and if necessary, adjust the initial fine to ensure it fulfilled the sentencing objectives for the offences, including ensuring that the fine was sufficiently substantial to have a real economic impact that would bring home to the company's management and the shareholders the need to comply with health and safety legislation, and the fine imposed by the sheriff properly fulfilled those objectives.

"In short, when the Guideline is used as a cross-check against the sentence imposed by the sheriff it can be seen that the fine selected was broadly in line with the level of fine that would be appropriate were the Guideline to be applied to the circumstances of the present case. We stress that the Guideline should not be used in a mechanistic manner; it can be used as a broad cross-check against the sentence that would be considered appropriate according to current Scottish sentencing practice".

The appeal was refused.