SENTENCING STATEMENTS

On sentencing, Sheriff Arrol said:  

"On 31 October, 2024 Merchant Homes Partnership Limited (who I will refer to as the company) pled guilty by way of section 76 indictment to a charge that as contractor, they  did not provide traffic routes suitable for use by persons or vehicles in that they did fail to ensure a traffic route at the construction site was suitable for use by vehicles, failed to undertake suitable and sufficient assessment of hazards created by wheeled mobile plant using this route and failed to put in place adequate control measures to mitigate the associated risks. The consequence of these failures was that a telehandler being driven by Scott Bradley whilst reversing on this route, slid down an embankment causing him to sustain an injury from which he lost his life.

The circumstances of the offence were narrated to the court in detail when the case last called. In summary, Mr Bradley started work within the construction site at Lochwood Gardens on 11 May 2022, at around 8 am. He carried out a safety inspection of the vehicle, a JCB Telehandler, prior to operating it. He then spent the morning moving palletised materials around the site. At around 10.40 am Mr Bradley reversed the telehandler between plots 107 and 108 whilst carrying a load of scaffold standards. Whilst he was doing so, the right rear offside wheel of the telehandler went over the edge of the embankment causing the telehandler to become unstable and tip onto its offside then roll down the embankment. The telehandler travelled a distance of 8.1 metres before coming to a halt. Witnesses made their way towards the telehandler. Site workers were alerted to the accident by a telehandler horn which Mr Bradley sounded. The site assistant manager made his way to Mr Bradley who was found to be conscious but unresponsive. Mr Bradley was noted to be losing a significant amount of blood from a head injury.

Fire and ambulance crews arrived on site but Mr Bradley was unconscious and unresponsive by this point. He was pronounced life extinct at 11.10 am noting head trauma incompatible with life. A post mortem conducted on 20 May 2022 certified the cause of death as head injury due to accident at work.  

Scott Bradley was 44 years old when he died. He was married, a stepfather to six children and father to one child with his wife. His family have been devastated by his death. He was an experienced operative, of whom colleagues spoke highly.

Merchant Homes Partnership Limited is a private limited company, incorporated on 24 July 2008, with two directors.  In December 2023, the Crown received notification that the company was entering into voluntary liquidation. On 25 June 2024, under terms of section 130 of the Insolvency Act 1986, the Crown was granted consent to indict the company in liquidation. The financial difficulties leading to liquidation were attributed to increasing material costs which in turn increased project costs and delay in future projects. Attempts to sell the company were unsuccessful. In addition, six figure cash injections from the directors to assist with cash flow did not prevent liquidation. At the point of liquidation, the company had 22 employees and two projects ongoing.

The turnover at 31 January 2022 was around £15 million, at 31 January 2021 was around £10 million, at 31 January 2020 was around £13 million and at 31 January 2023, just short of £22 million.

The company has no previous convictions but in March 2021 Health & Safety Executive (“HSE”) issued two improvement notices. The company complied with both notices.

Following their investigation, HSE served a prohibition notice for the use of wheeled plant at the rear of 107 -121 until demarcation was in place on the embankment, the ground was level and excavations were fenced. Two further prohibition notices for work at height and six improvement notices were also served.

The site’s traffic management plan did not designate the traffic route behind plots 107 – 121 as an official traffic route. It was apparent that wheeled mobile construction plant had been using the traffic route over a prolonged period. An excavator operative, dumper operative and groundwork supervisor confirmed that the dumper was used to transport sub soil from an area next to plot 121 to plot 109 frequently for a 4 week period before the incident. Without a system to designate the traffic route, there were no risk assessments which considered the hazards and associated risks from the use of wheeled plant, including telehandlers, on this traffic route. The route was not demarcated, and no containment barriers were in place. There was no indication of attempts to consolidate, improve or maintain the ground to achieve a firm and even surface. The risk of overturning plant is well recognised in the industry.

Mr Bradley’s death occurred from him reversing a telehandler in an area that was unsafe to do so. The traffic route was unsuitable, owing to ground conditions and lack of demarcation between the route and the edge of the embankment. The company failed to identify the risk of use of wheeled plant on this route and either take action to make it suitable or to stop the use of wheeled plant on it.  

Since 22 September 2021, all courts in Scotland are required to follow the Scottish Sentencing Council guideline 'The sentencing process'.

The first step of the sentencing process requires an assessment of the nature and seriousness of the offence. The seriousness of an offence is determined by two things: the culpability of the offender and the harm caused, or which might have been caused, by the offence. As either or both culpability and harm increase, so may the seriousness of the offence.

In this particular case, the harm caused could not have been greater – as a consequence of the Company’s admitted failure Mr Bradley lost his life.

In assessing the seriousness of a particular offence, the court should refer to any applicable sentencing guideline which lists any factors relevant to the consideration of culpability and harm. As yet, there is no such guideline in Scotland in respect of health and safety offences, however, the court is permitted to have regard to, and has been referred to, the applicable definitive guideline in England and Wales, namely, that from 2016.

With reference to that guideline, Miss Anderson for the company invited the court to assess culpability in the medium category.

I accept the submission that the degree of culpability falls within the medium category. Systems were in place but there had been a departure from these systems, meaning they were not sufficiently adhered to or implemented.  

Looking at the harm factors, whilst it was acknowledged that death resulted in seriousness of harm at Level A, I also require to consider the appropriate category of likelihood of harm. I am satisfied that the appropriate level is medium likelihood of harm.

This being a Level A case the sentencing guidelines in England and Wales placed this offence within ‘harm category 2’.

For a medium organisation, that is one with a turnover or equivalent in excess of £10 million per annum, the starting point in such a case is a fine of £240,000 with a sentencing range of £100,000 to £600,000.

At this point, I am required to identify aggravating and mitigating factors.

In terms of aggravating factors, I am satisfied that none of the aggravating factors referred to within Scottish Sea Farms Ltd v HMA 2012 HCJAC 11 at paragraph [18] nor within the English guidelines are present.

Looking to the mitigating factors referred to in the aforementioned authority and guideline, I find that three are present. Firstly, there was cooperation with HSE with a full admission of responsibility. Secondly, steps were taken immediately to remedy the cause. Finally, the company has no relevant convictions.

In determining the headline sentence the court must also have regard to the Scottish Sentencing Council’s guideline ‘Principles and purposes of sentencing’. Amongst other considerations, sentences should be no more severe than is necessary to achieve the appropriate purposes of sentencing in each case.

The company is currently in liquidation. It was submitted that the fine should be proportionate to the means of the offender. In short, they have little, if any means at all. The liquidation process is ongoing and it remains to be determined what the financial position will crystallise at. 

The purposes of a sentence may include a number of things, one of which is expressing disapproval of offending behaviour.

Notwithstanding the starting point and range I have identified, looking to the lack of aggravating and the present mitigating factors in this case, I am satisfied that a headline sentence of a fine of £240,000 is no more severe than is necessary to achieve the appropriate purposes of sentencing in this case.

The court is required by law to take into account the stage in the proceedings at which, and the circumstances in which, the offender indicated their intention to plead guilty. This is a plea of guilty under section 76 procedure and I will give effect to that by reducing the headline sentence to a fine of £160,000. The fine is to be paid in 28 days and is recoverable by civil diligence in default of payment."