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HMA v Kettle Produce Limited
Nov 24, 2023
 I have taken into account what has been said in the detailed oral and written submissions on behalf of the company by Mr Smith KC and on behalf of the Crown by the procurator fiscal Ms Addair; the financial information provided; and the agreed narrative. Ultimately, after careful consideration, I have determined an appropriate level of fine. I will set out the level of fine that I am imposing first and then I will explain the reasons for my decision.
 I have decided to impose a fine of £540,000. I will reduce that sum by one third to £360,000 in light of the company’s guilty plea at the earliest opportunity. I will allow twelve months to pay the fine.
Circumstances of Offence
 The offender in this case is a market leader for the provision of fresh and prepared vegetables. The site at Orkie houses the company’s carrot, parsnip and swede washing, grading and packing line capabilities. The company has not previously offended.
 The injured party Mr Cyrek was a hygiene operative employed by the company. He is a Polish national and was aged 37 at the time of the incident. He had worked at the company since 2017. At the time of the incident, he worked on a carrot baton line conveyor belt. Each belt could be switched off and isolated locally with a padlock. The controls were covered to prevent inadvertent operation. Deep cleans of the machinery took place on a weekly basis. The process of cleaning the machinery was covered by a number of cleaning instruction cards.
 At around 20:40 on 22 June 2018, Mr Cyrek was allocated the task of cleaning the carrot baton line. He got a large pressure washer, removed the belts and placed them on the floor. This left the rollers exposed. He began washing the frame and went underneath to clean the underside. While underneath, the hood of his top was caught by the roller. Another operative who had gone to get a replacement part returned to find Mr Cyrek unconscious with his hood round the roller, tightened against his neck. The hygiene controller and team leader were 15 metres away and heard the operative screaming. They switched off the carrot baton line and manually rolled it to free Mr Cyrek.
 Paramedics arrived and Mr Cyrek was taken to hospital. He suffered from extensive swelling and bruising to his neck and pain on swallowing. He subsequently suffered from focal tingling and reduced sensation at the tips of his index fingers and pain in his neck and back. He had reduced mobility. He was off work for six months and then returned to work on light duties for another six months thereafter. He was treated with physiotherapy and painkillers
 The Health & Safety Executive carried out an investigation. While in normal operation the carrot baton line was adequately guarded, during cleaning the guards were removed to allow access to parts. The system of work for cleaning the carrot baton line and the documentation produced by the company was a good introduction document but did not provide specific information about isolation and locking off for the carrot baton line. The cleaning instruction card clearly stated that the power switch must be turned off and isolated but did not cover how to switch off, isolate and lock the machinery.
 Following the incident, pictorial instructions were provided showing how the machinery should be isolated. The company’s isolation policy and procedures were modified to include a management control section which allowed the company to confirm the isolation procedures were being followed. From witness statements, it was clear that some employees, including the team leader, had different views on whether the belt should be energised and rotating during cleaning. The conflicting views contributed to the unsafe system of work for employees engaged in the task of cleaning the carrot baton line machinery. Post incident, the company provided: modified training documentation to include isolation; monitoring of work procedures; tool box talks on hygiene and maintenance; and spot checks.
 The maximum penalty in this particular case is an unlimited fine. Applying the relevant factors set out in Scottish Sea Farms Ltd v HMA 2012 SLT 299 to the circumstances of this particular case, this is not a case where death has occurred, nor was the breach with a view to profit. In terms of the degree of risk and extent of the danger, the company fell short in relation to a weekly cleaning operation. While that subsisted over a period of time, there was no evidence of any harm on any other occasion. The safe system of work was followed on other occasions. The company: made a prompt admission of responsibility; took steps to remedy the deficiencies; and had a good safety record.
 In terms of the resources of the company and the effect on its business of a fine, the company’s accounts indicate that turnover is consistent at over £145 million in 2020, 2021 and 2022. The company made a net loss of £2.2 million in 2020, which reduced to £515,000 in 2021 but rose to £1.8 million in 2022. I was informed that the net losses had increased again to £2.7 million for the year ended May 2023 and that the company was working hard to address costs and return to profit after an extremely challenging trading period. The combined effect of the COVID-19 pandemic and inflationary pressures on goods and services had contributed to those losses.
 The Scottish Sentencing Council’s Principles and Purposes of Sentencing Guideline makes it clear that in weighing up all the relevant factors of this case, I am required to impose a sentence which is no more severe than is necessary. I am of the view that in light of all the particular circumstances of this case, a fine in the sum of £540,000 achieves the purposes of punishment and societal disapproval, while being no greater than the interests of justice demand.
 As a cross-check, I have also had regard to the Definitive Guideline in relation to Health & Safety Offences produced by the Sentencing Council in England. Following the steps outlined in the guideline, I am of the view that the medium category of culpability is applicable because systems were in place but these were not sufficiently adhered to.
 Moving on to determine the level of harm, since death could have occurred the offence falls within level A in terms of seriousness of harm risked. As far as likelihood of harm is concerned, I assess this as on the cusp of the upper end of low (category 3) and the lower end of medium (category 2). Given that the offence was a significant cause of actual harm in this case, I am of the view that overall, the harm falls to be assessed towards the lower end of category 2.
 Large companies with turnover of £50 million or over attract fines ranging from £300,000 - £1.5 million for category 2 offences, with a starting point of £600,000. Allowing for the mitigating factors outlined above, I am satisfied that my imposition of a fine of £540,000 in this case is proportionate, falling within the lower end of category 2 offences.
Discount and Time to Pay
 I will discount the fine by one third to £360,000 in light of the company’s guilty plea at the outset. I will allow twelve months to pay the fine.
 There have been considerable delays in this case, none of which are the fault of the company. The incident took place on 22 June 2018 and the Health & Safety Executive concluded their investigation in February 2019, but a meeting with the company’s agent and counsel did not take place until February 2022, some three years later. The company offered to plead guilty on 28 February 2022, but that was not accepted by Crown Counsel until over a year later in March 2023 and then another seven months passed before the case was brought before the court in November 2023.
 The Crown apologised to the court for the delay in this case and indicated that they had changed their way of working in their Health & Safety Investigation Unit. There was now close oversight by senior managers and a focus on clearing a backlog of cases.