In HM Advocate v Tigh-Na-Muirn Ltd, the Crown appealed an unduly lenient sheriff's imposition of a £30,000 financial penalty, which was then discounted by one third to 20,000, following a company's guilty plea to breaches of the Health and Safety at Work etc. Act 1974.
The respondent operated a privately owned residential care home for 59 service users. They operated a resilience plan in response to the coronavirus pandemic whereby isolated rooms would have their own cleaning kits which would be stored on top of the cabinet above the sink in the bathroom of resident's rooms.
One of the residents, a 90 year old male who had been admitted for emergency respite and who suffered from various conditions including Alzheimer's disease, was placed in temporary isolation within his room on returning a positive COVID-19 result. On the resident's last day of isolation he was seen sweating profusely and with breathing difficulties, and an unlabelled screw top spray bottle of cleaning sanitiser was observed alongside a paper cup containing residue in the same colour as the liquid.
He was hospitalised and died a few days later. A post mortem examination revealed the primary cause of death to have been acute tracheobronchitis and pneumonia, resulting from the ingestion of ammonium based cleaning product.
"This flawed approach has led to the imposition of an unduly lenient sentence. Accordingly, we must consider an appropriate level of fine of new".
The incident had wrongly been categorised as an isolated one when the period of the libel illustrated that for two and a half months the respondent breached a standard it had formerly adhered to, of ensuring that residents were protected from any risk of ingesting hazardous substances by keeping them in a locked cupboard. The simple and effective procedure of keeping locked boxes outside the room of any resident who was isolating following the death illustrated that, had the proposal to store substances in a resident's bathroom been risk assessed in a meaningful way, a different result would have ensued.
The direction given to the respondent required it to consider how best to isolate a COVID-19 positive resident while minimising any other risks to health and life, but it had failed to make any appropriate assessment for the whole period, and the sheriff's assessment failed to take sufficient account of the fact that said failure let directly to the death of the deceased. In addition, as the deceased was a vulnerable person with a reduced cognitive function, with far less staff contact due to isolation, there was a heightened responsibility to assess any risk arising from his isolation and changed hygiene practices, which ought to have been taken into account.
In context, it was recognised that the respondent was faced with extraordinary circumstances in the first few months of the pandemic, but the sheriff had erred in assessing culpability as low, and inadequate consideration had been given to the degree of risk and the extent of the danger, as well as it being a continuing breach. Having regard to both the applicable principles and the English guideline, the court decided culpability ought to be assessed as at least medium due to the ongoing failure to obsess the obvious risk of changing a system of locking away a hazardous substance and placing it within residents' reach was serious, and significant harm was undoubtedly caused.
On appeal the court also concluded that although the sheriff might have been correct to assess the risk of harm as no higher than category 2, it could be seen at the higher end thereof. Had the sheriff not erred, the starting point for financial penalty would have been either £54,000 with the range being from £25,000 to £230,000 (for medium culpability and harm category 2), or £100,000 with a range of £50,000 to £450,000 (for high culpability and harm category 2).
The level of fine might have been at the higher end of the medium culpability and harm category 2 but for the mitigatory factors on which the sheriff had properly relied. Nevertheless the fine imposed failed to sufficiently fulfil the relevant sentencing objective of punishment and deterrence, and while sufficient account ought to be taken of the respondents financial position, the information provided did not cause concern that the ongoing businesses would be threatened by the fine imposed.
"For these reasons, we shall allow the appeal, quash the sentence and substitute a fine of £60,000, reduced from a starting point of £90,000 in light of the early plea".
The appeal was allowed.
