SENTENCING STATEMENTS

On sentencing, Lord Beckett made the following statement in Court:

“This case arises from terrible events in which two relatively young people died, one of them after days of severe physical suffering when she must have been in an almost unimaginable state of distress and anxiety. As the hours became days she must have felt disbelief that she could be injured and trapped in a car just off the roadway of the M9 motorway with no assistance arriving, a disbelief shared by the whole community when the full circumstances came to light.

Both families spent days wondering what had happened to cause their unexplained disappearance before learning of the awful reality.

Lamara Bell and John Yuill left behind grieving children, parents and siblings and I have been told of the profound impact on them.

There is no sentence this Court can pass which reflects the inestimable value of life lost and harm caused.

In considering sentence, I proceed on the basis of the terms of the charge and the careful narrative of relevant circumstances, all of which I take into account. I take account also of what has been said in a reasoned and informative plea in mitigation.

The charge is brought under section 3 of the Health and Safety at Work Etc Act 1974 and narrates that the failures set out in the charge materially contributed to the death of Lamara Bell.

It is now known that in the early hours of 5 July 2015 Mr Yuill had driven off with Ms Bell in the front passenger seat from where they and some friends had been camping by Loch Earn. Their car was detected on cameras between 0531 and 0543. It is likely that it left the road and crashed at about 0617. It seems that Mr Yuill would have been unconscious from the moment of impact and he died from unsurvivable injuries close to the time of the crash. The charge does not suggest that failures by the Police Service of Scotland materially contributed to his death as they did in the case of Ms Bell.

A member of the public had seen a stationary car at the foot of an embankment beside the eastbound carriageway of the M9 motorway near Bannockburn and telephoned the police 101 line to report it at 1128 am on 5 July 2015.  He had not seen any people, assumed that the car was abandoned and thought that the police may know about it although he had not seen any police tape to indicate that they did.

The police officer to whom he spoke was acting as a Call Service Advisor at Bilston Glen Service Centre. The details of that call, which ought to have been treated as a priority, were written down but were not entered into the electronic system, STORM, which would have prompted a police response.  Accordingly the incident remained unknown to the area control room and no further action was taken in response to the call. Had the appropriate entry been made, police officers would have attended at the scene within a few hours.

Ms Bell was badly injured but still alive and conscious when another member of the public saw the car and approached it at about 0940 on 8 July. He summoned the emergency services who attended to Ms Bell and in due course flew her to hospital where she was treated until she died on 12 July 2015. Had she been found within hours of the crash, she may well have survived but would have been left with some neurological deficits caused by serious head injury.

The offence for which the Police Service of Scotland has accepted responsibility and pled guilty to arises from human error which arose at a time of considerable restructuring of the police and necessary reorganisation of their procedures. I accept senior counsel’s unchallenged submission in relation to the reorganisation of call handling and area control, that:

“This was not change for the sake of change, or change driven purely by the desire to reduce costs. Rather, the lack of an integrated system caused considerable operational difficulties: the previous legacy systems could not communicate with each other, access to technology across the forces varied and coordination of operational responses across legacy boundaries was convoluted and cumbersome.”

 Against this background a mistake was made by a person whose work generally raised no concerns when assessed by independent health and safety experts. We are all human and we all make mistakes. Large and complex organisations providing a vital service to the public must be ever vigilant to ensure that mistakes which can have severe consequences are guarded against.

In this case an individual human error on 5 July 2015 comes against a background, according to the wording of the charge, of a failure enduring over almost three years to provide an adequate call-handling system; failure to ensure that the system was not vulnerable to unacceptable risks arising from human error; and failure to ensure that information reported by members of the public would always be appropriately acted upon.

The Crown narrative has amplified these failures and explained that the risk of not transferring call details onto STORM was not recognised, identified or considered before the M9 accident. The entirety of the call handling system was not subjected to any risk assessment prior to the M9 accident. Risk assessments which could readily have identified the potential for the type of human error which occurred were not carried out.

There was no system in place to ensure that lessons were learned from errors being made.  

Difficulties were apparent with call handling during restructuring, and particularly relating to levels of staffing at Bilston Glen in 2015, even if Action Log Gold Group 23 relates to another stage of the procedure involving omissions by area control in despatching response officers as opposed to failures to make an electronic input in the STORM system, but the Crown narrates that the risk was not recognised or further considered. It has been narrated in this case that:

“Before July 2015 there was no recognised Quality Assurance in place to ensure that a Service Advisor created a STORM call record for every incident that needed to be passed to the area control room for further action.”

and that:

“There were no role specific risk assessments in place and no precise risk management plan existed within the Service Centre and Control Room environment.”

This is a deeply regrettable state of affairs, no doubt for the police themselves, but so much more so for the public who depend on them.

The Police Service of Scotland exists to protect the safety of the public and to prevent crime, harm and disorder. Police officers achieve these objectives individually and collectively in countless ways and on numerous occasions every day. This court is familiar with police officers giving evidence in trials arising from their outstanding performance of their difficult duties. It is unprecedented for the Police Service of Scotland to find itself accused and now convicted in the High Court.

The Chief Constable, who has given decades of dedicated service to the public, appears as the head of the organisation to accept responsibility for failings of a kind he has spent his career seeking to prevent. The profound impact of the Police Service of Scotland being accused and convicted in this court is, of itself, an important factor I take into account in considering the appropriate sentence.

I also take account of the prompt, private acknowledgement of failure to the families by Police Scotland on 8 July 2015 and his predecessor’s public apology and acceptance of responsibility on 10 July 2015, repeated today by the current Chief Constable.

In this case the court must express the community’s outrage at and its own condemnation of the fundamental failures uncovered during the investigation into these events. Such outrage and condemnation may be assuaged to some extent by the acute discomfort felt by the Police Service of Scotland on being convicted of a criminal offence in the High Court of Justiciary.

There is mitigation in the remedial measures which have been taken which may provide reassurance for the public and I certainly consider it reassuring to learn that steps were already being put in place from 9 July 2015 onwards.

The whole set of remedial measures which were implemented thereafter have been described both by the Advocate Depute and by senior counsel in considerable detail. Whilst human error can never be entirely eliminated, the changes in resourcing, equipment, training and procedures do seem to go a very long way towards eliminating the particular mistake which was made in this case. Senior counsel read out the Chief Constable’s letter in which he expresses his personal apology and condolences and in particular his contrite recognition of the extent of what went wrong and his explanation that improvements have been made may offer further reassurance.

In considering sentence I must consider decisions of the High Court of Justiciary which might constitute relevant precedent. In that regard I have been assisted by the review of sentencing decisions in Scottish Power Generation Ltd v HM Advocate 2017 JC 85, albeit the cases involve commercial enterprises. The guidance of that court is that I should have regard to sentencing guidelines issued for health and safety offences committed by organisations in 2016 by the Sentencing Council of England and Wales.

 I do take account of these guidelines but they do not neatly fit the circumstances of this case and I must have regard to all of the relevant circumstances of this particular case which cause me to make significant adjustments to the process set out in the guidelines.

Such a sustained breach of health and safety laws which ultimately gave rise to such a serious outcome might ordinarily be met with a very substantial fine, perhaps running into millions. In this case there is an acute problem in taking that course. The Police Service of Scotland is not a commercial enterprise pursuing profit, but a public body whose purpose is to protect the public.

In short, for failure to comply with the requirements of the Health and Safety at Work etc Act which exposed the public to risk with the awful consequences of this case, the normal level of fine would reduce the ability of the Police Service of Scotland to protect and serve the public. Any fine will in effect be paid out of public funds generated from taxes paid by members of the public who rely on the police force to protect them. This is not a new dilemma, but it is one I must take careful account of.  

A similar dilemma faced Lord Uist when he sentenced Lothian and Borders Fire Rescue Board in 2015 for health and safety breaches which led to the death of a fire officer in the course of his duties.  He gave effect to guidance offered by Lord Chief Justice Bingham in 2000 which is now embodied in step 4 of the 2016 guidelines, which step was considered and applied by the Court of Appeal in February this year in the case to which I was referred by senior counsel. Lord Uist selected a fine of £60,000 before making allowance for guilty pleas, which were not early, to four charges, two of which extended over a year.

Having regard to the 2016 guidelines, I consider that culpability lies on the border between medium and high but closer to medium. So far as the potential for the failure over the period of 35 months to cause harm is concerned, it created a risk of causing serious harm. On the other hand, over that period, it might also be said that the likelihood of such harm arising was low given how many millions of calls to the police must have been made and responded to. This might locate this case in harm category 3, but the actual harm caused in this case could not be more serious, it must be taken into account and elevates the harm category to 2.

Whilst the turnover of the Police Service of Scotland is very substantial, it is all accounted for. It does not have reserves.  I consider that Police Scotland should be viewed as a large organisation which causes me to identify starting points between £ 600,000 and £1,100, 000 and a range between £300,000 and £2,900,000.

There are no previous convictions or other additional aggravations to consider. There are significant mitigating factors in the comprehensive and effective measures which have been taken to address the failures identified, implementing recommendations made by the Inspectorate; a high level of cooperation in the investigation; and acceptance of responsibility.

This might indicate a fine of £300,000 but this would have material impact on the employment of staff by the police and on service users who could be any of the millions of people who rely on Police Scotland if, as seems likely, there would be an impact on the provision of services. The larger the fine the greater the impact on the public. Accordingly, I reduce the level of fine to £130,000. Since there has been an early plea of guilty and no trial, taking account of appellate guidance, an allowance for the plea of guilty reduces the fine to £100,000.

The fine is to be paid in 28 days and recoverable by civil diligence in default of payment. I shall remit this to the Sheriff Clerk at Dunfermline for enforcement.”