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HMA V R J McLeod
Apr 14, 2023
On sentencing Sheriff Matt Jackson made the following remarks in court:
"In the evening of 16 July 2020, Shea Ryan was playing with his brother and sister and two other friends in a play park next to a construction site at Glenkirk Drive, Drumchapel in Glasgow. Shea was 10 at that time. The children left the park and made their way through insecure fencing into the construction site that was next to the park where they had been playing.
After playing in soil and generally exploring in the construction site, the children moved towards a large manhole which was around 60 metres from the fence they had come through. The manhole was part of an inspection chamber which led to a concrete base and then to flowing water. There was a drop of 5.5 metres to the concrete base and 6.5 to the water below. There was a fixed ladder that led from the entrance of the manhole to the ledge below. The manhole was uncovered. It had been covered during the period of lockdown but it was not covered on the evening in question. It is not clear how the cover had come to be removed.
Shea approached the opening of the manhole and sat on the side of the uncovered entrance. He said that he wanted to go down into the manhole. He began to climb down the ladder when he slipped and fell.
The other children present raised the alarm and Shea’s step-father, Graham Patterson found Shea in the flowing water further down the pipe at the foot of the manhole. Shea was pulled out of the pipe and laid on the ledge at the bottom of the ladder.
Shortly before 10pm, police arrived and found Mr Patterson with a neighbour together with Shea still on the concrete ledge. A police officer went down the ladder and saw that Shea had suffered a severe head injury and was cold to touch. He was not breathing. That officer brought Shea to the surface and tried to resuscitate him with CPR. He did that until the ambulance staff arrived and took over. He was taken to the Royal Hospital for Children where resuscitation was tried again but failed. Shea’s life was pronounced extinct at 23.07 hours that night. The cause of death was given as head injury with drowning.
The area where this tragic event took place was within a construction site being managed and over seen by the accused company, RJ McLeod (Contractors) Limited. That company had acquired responsibility for the site on 3 July 2020, having taken it over from another company also working on that site.
On 12 April 2023 the company pled guilty to a contravention of section 3(1) and 33(1)(a) of the Health and Safety at Work etc. Act 1974. Specifically they admitted that they had failed to carry out a suitable and sufficient assessment of the risks of unauthorised persons gaining access to the construction site running adjacent to Glenkirk Drive, as a result of which they failed to adequately inspect and maintain suitable perimeter fencing and other site security measures to prevent such access. The company prepared a risk assessment on 6 July 2020 which did identify a risk associated with members of the public accessing manholes but that assessment failed to identify the risks presented by the proximity of the play park. So, as a consequence of that failure, there was no full assessment of all of the control measures that were necessary to manage the risk of unauthorised access at this part of the site.
The company, by pleading guilty, accepts that as a result of its failures, it did not identify whether measures in addition to the perimeter fencing were appropriate to control the risk of children being attracted to, and gaining access to, the construction site. It did not for instance implement double fencing in the perimeter fencing at that area of the site.
An expert in Health and Safety matters, Mr Michael Thompson, described the control measures in place at the time of the accident as inadequate to control the risk of preventing unauthorised access to the site, in particular access by children, given the proximity of the park. His report quotes from an industry manual HSG151; Protecting the Public- Your Next Move (2nd edition 2009) which states;
Risk assessment should decide how the perimeters will be defined, what type will be needed to protect the public and where it should be placed. Factors to consider will include
- The nature and type of the construction work;
- How heavily populated the area is;
- Who will need to visit the site during the work;
- Whether the site may attract children; and
- Site characteristics.
The expert concluded that given the location of this site in a residential area and the significance of the risk of unauthorised access, the security of the fencing should have been the subject of a specific risk assessment and control measures. A re-assessment and more robust fencing should have been actioned and put in place as a reasonably practicable measure to prevent unauthorised access to the site. Further, regular planned inspections, formally recorded and communicated to the site management team would have highlighted that the control measures in place were ineffective and required re-assessment.
It is also a matter of agreement that prior to this event, the company had no formal written system for monitoring damage to its perimeter fence. There were arrangements whereby people working on the site were briefed by the site foreman on 25 June 2020 and fencing repairs were discussed in a talk delivered by the site foreman on 10 July 2020 but this lack of a formal system of reporting damages to fencing deprived the company of the information necessary to assess ongoing risk and to review its risk assessments in the light of this. Risk assessment is, or should be, a dynamic process.
After Shea’s death I am in no doubt that the company did everything within its power to ensure that across all of its sites, risk assessment was closely scrutinised to ensure that any risk associated with close proximity to a children’s play area was reconsidered in light of the awful events that had taken place in Drumchapel that night. It is notable also that immediately after Shea’s death, heightened precautions were installed at the Drumchapel site resulting in double fencing being implemented as well as instituting a bespoke system of recording fence inspections and any required actions. Security cameras were installed on site and a safety stand down took place across all sites during which the importance of site security requirements were stressed to all company personnel. The solicitor for the company in his submissions to me accepted that these were the control measures that should have been in place at the time of Shea’s death.
I was also told that the Company has updated its construction phase plan template by including these words; Where our perimeter bound fence is in the vicinity of play park or similar you must; double fence the perimeter boundary at the area. There should be a minimum of 2 metres separation between the two boundary fences. CCTV should be installed to monitor the gap between the fences.
The written submission of the company makes a number of similar observations on how it has changed its guidance on site preparation and risk assessment where spaces involving children are close by.
That submission also addresses the health and safety culture within the company prior to this incident. The submission addresses the significant role that guarding against hazards plays within their organisation. I was directed to the considerable sums of money invested in the area of health and safety by the company. I was told that before COVID, the Company would ordinarily go into schools and engage with people living locally to a site to advise them of what they were doing and how to avoid hazards associated with their operations. I note also that the company carried out various repairs and improvements to the Drummore Primary School at no cost. The cost associated with that action will only be a tiny fraction of the Company’s expenditure but I do consider it to be a very real manifestation of the company’s evident remorse for its actions, or inactions.
I was asked by the solicitor for the company to find that this breach of the Health and Safety statute was not part of a systemic, company-wide problem but rather an isolated breach that was specific to this site. I am prepared to make that finding. I have been provided with abundant support for the proposition that with the singular exception of the considerable lapse that has resulted in the failings that preceded Shea’s death, this is a company which approaches the area of Health and Safety with rigour and competence. In a sense, that makes this tragic error all the more troubling.
I also find that while there are 2 previous convictions that have been placed before the Court when sentence was moved for, they are of such an age and sparsity that it is appropriate for me to disregard them in the sentencing exercise.
And so I turn then to the question of disposal. Nothing that this Court can do can bring Shea back. A wonderful son and brother and friend has been lost to his family and his school and to all of us. But what this Court can do and what this court must do is select a sentence appropriate to this crime. In Scotland, when passing sentence, a Sheriff must consider a number of factors. I require to punish the offender and I also require to allow society to express its discontent at this type of behaviour. It is vitally important that everyone learns from this dreadful mistake.
I require to consider a number of different factors when considering sentence. In this case there will be a fine. The objective of a fine should be to achieve a safe environment and bring that message home, not only to those who manage a corporate offender, but also to those who own it as shareholders. The Company is, without doubt a large company. It’s year end accounts for 2021 disclose a profit of around £25 million on a turnover of some £194 million. I am told that the latest accounts which are not signed off show that the Company remains financially robust. I have been provided with the 3 latest sets of accounts and they demonstrate good financial health. They also disclose that this a significant employer and creator of infrastructure and improvement of our environment throughout our country.
In determining sentence i will follow the guideline developed by the Scottish Sentencing Council known as the Sentencing Process.
The first step of that process is an assessment of the nature and the seriousness of the offence. Its seriousness is determined by two things; the culpability of the offender and the harm caused by the offence. As either or both culpability increase, so may the seriousness of the offence. I paraphrase now from the sentencing statement of Sheriff Principal Turnbull in his sentencing statement in the case of HMA-v-GGHB when he says; In this particular case the harm caused could not have been greater- as a consequence of the Company’s admitted failure Shea Ryan lost his life. The process guideline goes on to provide that in assessing the seriousness of a particular offence consideration can be had to any existing guideline that may be applicable. In Scotland, we do not yet have a guideline dealing specifically with health and safety offences and so it is open to me to turn to the England and Wales definitive guidelines. I consider it appropriate to do so now. I was invited by the Solicitor for the company to find that his client’s culpability lay in the medium range.
I accept that submission. The opening line within the paragraph dealing with High Culpability says The Offender fell far short of the appropriate standard. It then provides examples of how such a failure might be manifested. I am persuaded that the breach of the Act to which the company has pleaded guilty does not fit into any of those categories. Specifically, nowithstanding the tragic and awful consequences of the loss of Shea’s life, I do not consider that this breach represents a serious or systemic failure within the Company to address risks to health and safety.
The contents of the expert report prepared in the aftermath of this event as well as a comparison with the preventions in place at the time of Shea’s death being compared against the protections instigated immediately thereafter, are compelling factors in my decision. Stepping back from the technical language often necessarily used by lawyers, the situation here is that on the evening of Shea’s death there was an insecure 2 metre fence separating a playground with adventurous children from a hazardous construction site. That fence appears to have been breached on a regular basis.
I am also influenced by the lack of any formal reporting or recording system detailing breaches of the fencing in this area. That lack of a reporting and recording system deprived the company of essential information which could and should have informed a dynamic risk assessment process.
Moving onto the next step of the definitive guideline I find that, as conceded by the company’s solicitor, the seriousness of harm risked is at level A and, secondly, that there was a high likelihood of harm. This results in a finding of Harm Category 1. Can I also say at this juncture that I consider it entirely proper of the Defence solicitor to make these concessions. I consider that to do so reflects well on the company itself and is, again, indicative of the remorse shown by them.
I now consider the two factors to be considered in assigning what is called the “final harm category”. I reflect on the number of children who were present that evening, namely 5 and I also consider whether the offence was a significant cause of actual harm. The answer to that latter question is recognised by the company’s solicitor as “yes”. The range proposed by the definitive guideline is between £800,000 and £3,250,000 with a starting point of £1,300,000. I find that in fact a figure of £1.5 million is appropriate at this early stage of the calculation to reflect the added aggravation of the number of children present that evening and the recognised fact that the offence was a significant cause of the actual harm.
I then require to consider whether that figure should be altered to reflect any particular aggravations associated with the offence or indeed any obvious mitigations.
I do not find any aggravating features present here. The tragedy of Shea’s death is already taken into consideration. There are, however, considerable mitigatory factors. I do not consider either of the two previous convictions to be relevant, particularly standing their age. There is ample evidence of steps taken to remedy the problem and, just as importantly, to learn from it. There has been a high level of cooperation with the HSE investigation. The company has a good health and safety record and I am satisfied that with the singular exception of this incident, there were and are effective health and safety procedures in place throughout the company. Finally, and importantly I am satisfied at the considerable remorse shown by the people at the head of this Company who are present here in court today. In light of all of those factors I require to modify the starting figure and I will establish what might be called the headline sentence at £1.2 million. I consider that to be a proportionate figure in all the circumstances as outlined to me in the agreed narrative and bearing in mind the company’s financial resource
Finally in the question of disposal I require to consider the stage at which this plea has been tendered. Having given consideration to the very considerable utilitarian benefit achieved by discussing and agreeing this plea without the need for trial, I consider that the headline figure can be adjusted by one third resulting in a final figure of £800,000. There is also an associated victim surcharge which will require to be paid by the company. That sum shall be paid to the clerk of the court here in Glasgow within 28 days of today’s date and that sum will also be recoverable by civil diligence.
That is the sum which the company will pay as the fine in this case. It is a figure which, I am sure, will remind the company’s directors and shareholders of the gravity of this offence. But I must stress that this is not, and could never be, a figure which in some way represents a compensation for the terrible loss of Shea’s life."