SENTENCING STATEMENTS

On sentencing, Summary Sheriff Flinn made the following statement in Court:

“This case called before me on 8 September 2021. On that date, the accused pled guilty to an amended version of charge 1 on the complaint, which necessitated a substantial reframing of that charge, and not guilty to charge 2. These pleas were accepted by the Crown. I was provided with a Crown narrative, of some 15 pages, which, I was told, had been the subject of discussion between Crown and defence. That document sets out in clear and helpful terms the nature of the failings on the part of Ash Roberts Technical Ltd and therefore, by virtue of section 37 of the Health and Safety at Work Act 1974, a breach of section 3(1) of the Act by the accused.

This case arises out of an assessment dive off the East Lothian coast, in which a dive was to be carried out to assess certain competencies of two divers, William Peace, now deceased, and Richard Heppell. During the course of the dive in question William Peace got into difficulties at a depth of between 40 and 44 metres below sea level and died. It is not contended by the Crown that the failings of the company and therefore of the accused caused the death of Mr Peace. That is of course a critical point in arriving at an appropriate sentence.

The failings on the part of the company and therefore the accused are set out in the Crown Narrative. They can be summarised as:

• a failure to check both divers’ current levels of competence, as opposed to merely their previously attained training levels
• a failure to make a proper assessment of each diver’s rescue ability
• a failure to comply with the recognised practice that an assessment dive should take place to a depth significantly shallower than the limit 2 of the diver’s existing qualification - in this case, it is suggested, not deeper than 20 metres.

As noted above, these failures did not cause or contribute to the injury or death of any person, although no doubt they came to light as a result of Mr Peace’s death. The post-mortem report notes Mr Peace’s significant coronary artery disease. Death by drowning could not be confirmed or excluded. Mr Peace’s death was certified as “death whilst diving in a man with coronary artery disease”.

Counsel for the accused invited me to adopt the approach set out in Dundee Cold Stores v HM Advocate, and to have regard to the Sentencing Council’s Definitive Guideline on Health and Safety Offences, etc. 2015. The proper use of those guidelines is considered in Scottish Power Generation Ltd v HM Advocate. On that approach, I require to arrive at a provisional view as to the appropriate penalty before I adjust that penalty in light of aggravating and mitigating factors.

In arriving at a provisional view I note that counsel accepted that this case could be one of Level A for the seriousness of the harm risked; it could not in my view be otherwise given the dangerous nature of the diving involved. I accept also that a fair assessment of this case would be that it falls within a ‘medium’ likelihood of harm and therefore, Category 2. I accept that the offence itself was not a significant cause of actual harm and therefore this is a case in which the culpability is in the low-medium range, at Harm Category 2. That brings out what is referred to in the Sentencing Guideline as a fine in Band F, in the range of 500-700% of relevant weekly income, and in Band E in the range of 300-500% of relevant weekly income. I am satisfied that this is not the case in which the custody threshold has been reached and that a financial penalty is appropriate.

Following that approach, I am of the view that, given the risks inherent in this highly dangerous pursuit the fine should be near the top of Band F, that is to say 650% of relevant weekly income. That brings out a starting figure, based on the accused’s weekly income of £662.50 per week, of £4,306.00.

I accept that there are no aggravating factors to be considered here. There are none before the court, and the sort of aggravating factors referred to in the Dundee Cold Stores case, such as a breach with a view to profit, or cost cutting at the expense of safety, are not present here. I accept also that there are mitigating factors including the accused’s good health and safety record, his good character, the fact that there is no ongoing risk and his high level of cooperation with the police. These must be given appropriate weight.

Applying these mitigating factors, I am of the view that my provisional assessment should be adjusted downwards to £3,500. I am satisfied that notwithstanding the delay in bringing this case to court, the accused cooperated fully with the police, gave prompt instructions to his agent and agreed a plea as soon as the detailed terms of that plea had been adjusted by those advising him. On that basis, he should have the benefit of the full one-third discount. Accordingly, that brings out a final figure, for a financial penalty, of £2,300. I will impose a fine in that sum and invite representations as to time to pay.”

14 September 2021