Legal spotlight - December 21

THE SCOTTISH Sentencing Council has confirmed the approach to be adopted by courts in sentencing criminal matters in Scotland, including in respect of health and safety offences. The new guidelines apply to sentencing in criminal cases in Scotland with effect from 22 September 2021 and set out a step-by-step framework which the court should follow to reach a sentencing decision, along with some of the factors which may be taken into account at each step.

Over five years ago now the Sentencing Council’s definitive guideline for the sentencing of health and safety offences, corporate manslaughter and food safety and hygiene offences (the Definitive Guideline) came into force in England and Wales. Since then, there has been a significant increase in the size and number of fines, particularly for health and safety offences committed by larger organisations - a trend which shows little sign of abating. In Scotland, however, case law on sentencing continued to play a significant role, although more recently it has been confirmed that courts there should have regard to relevant sentencing guidelines south of the border when sentencing health and safety and fire safety offences. However, a requirement to have regard to certain guidelines is not the same as requiring compliance with them.

With health and safety legislation being applicable both north and south of the border, there is much to be said for conformity in sentencing too and the approach set out in the Scottish guideline broadly mirrors that of its counterpart in England and Wales. It is likely that the Definitive Guideline will continue to be of relevance in sentencing relevant specific offences in Scotland, however, given the increased detail provided in it.

The new Scottish guideline contains eight steps which are themselves split into three categories: arriving at the ‘headline’ sentence; other considerations; and imposing the sentence.

The first step which the court must take in the sentencing process is to assess the seriousness of the offence. This will involve looking at the culpability of the offender and the harm caused by, or which might have been caused by, the offence; as in England and Wales, actual harm is not required. In assessing culpability, the court is to “assess the blameworthiness of the offender at the time of committing the offence” which will involve consideration of a number of factors including “whether the offender knew, or should have known, of the risks that might arise from their actions, even although they did not intend to cause the harm that resulted”.

The court will then select the sentencing range. This is the range of sentences within which the appropriate headline sentence for the offence appears to fall, having regard to its seriousness. In assessing the sentencing range, the court should consult any existing sentencing guidelines which apply to the particular offence – in England and Wales the Definitive Guideline looks at the offender's turnover to get a starting point and range of possible fines.

The court should also consider the statutory maximum and minimum sentences and any relevant guideline judgments.

The third step is to identify aggravating and mitigating factors which may impact on the sentence. The Scottish guideline provides some examples of aggravating and mitigating factors, but these lists are non-exhaustive. Examples of aggravating factors include commission of the offence for financial gain, abuse of power or a position of trust, as well as other relevant convictions. For mitigation, factors such as no previous/recent relevant convictions, cooperation and a willingness to address the offending behaviours should be taken into account.

The court should then select the headline sentence. This is the sentence which is appropriate for the offence after consideration of all the matters in steps1-3. The Scottish guideline provides that the court should have regard to the purpose or purposes the sentence is intended to achieve. The purposes of a sentence may include, in no order of priority: protection of the public; punishment; rehabilitation of offenders; giving the offender the opportunity to make amends; and expressing disapproval of offending behaviour. The court should also have regard to any statutory provisions relating to the specific offence for which the offender is being sentenced. 

This headline sentence figure will then be subject to adjustment to take into account whether the offender pled guilty to the offence and the stage of proceedings that plea was entered. Adjustments will also be made to for any time spent by the offender in custody and any ancillary orders which may be imposed by the court.

After following each of these steps the court will then impose its sentence and must give reasons for the sentence. 

Where, as with health and safety, legislation has application both north and south of the border similar sentencing makes it easier for businesses operating in both to understand and appreciate the potential consequences of infringing their obligations. Businesses operating in Scotland should take note – the guidelines in England and Wales have already resulted in 8 fines of over £1m in 2021, up from 5 in the previous year. 

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com