SENTENCING STATEMENTS

Sheriff Frazer made the following remarks on delivering sentence:

"Firstly, this is a tragic case involving the death of an elderly female resident in a care home. The court’s deepest sympathies are extended to all of her family, including her daughter and grand-daughter who are present here today.

Secondly, I have listened carefully to and taken account of the very helpful oral and written submissions made by both the Crown and the defence.

In this case the deceased, Mrs Margaret Campbell, had been a resident at the Cradlehall Care Home for just over 2 and a half years. She was a considerable age who had suffered from ill health in the past, including previous incidents of choking on her food. In June 2020 a care plan was created by the Home to ensure that she did not eat food without proper supervision due to further risk of her choking. The plan and her diet were regularly reviewed; the last of which took place 4 days prior to this incident on 11 June 2022.

It is noteworthy that on the day the Home was short staffed with 2 agency workers responsible for the unit in which Mrs Campbell resided. It is apparent that neither of these individuals nor the other member of staff who was deployed at short notice to attend to Mrs Campbell were fully aware of the care plan that was in place. It is noted that no blame is attached to any of them for what subsequently transpired. It is also noted that having left Mrs Campbell unattended with her meal staff were faced with two unexpected incidents involving other residents which diverted their attention and prevented the member of staff who had provided her meal from returning to  Mrs Campbell’s room sooner than she did.

As senior counsel indicated and in line with the Scottish Sentencing Guidelines the starting point is for the court to assess the seriousness of the offence before going onto consider the appropriate sentencing range while taking account of all aggravating and mitigating factors in determining what is the headline sentence.

The offence is very serious given that a resident died in the Home who were responsible for her care and for which a clear and unambiguous plan was in place to supervise and oversee her eating of the food that was prepared for her.

In terms of culpability there was a clear risk of harm to Mrs Campbell which had previously been identified and had led to the eating plan being put in place to mitigate such a risk.

In determining the sentencing range I have taken account of the guidance provided by the England & Wales Sentencing Guidelines for Health & Safety Offences. As recognised by the courts here in Scotland this is for guidance only but is very helpful indicator of the approach to be taken when dealing with an offence of this nature.

Turning to those particular guidelines I am satisfied that this offence is not one which was in any way deliberate nor a flagrant disregard of the relevant law. I am satisfied that in terms of culpability it can be described as fitting into what is described as the “medium category” for such an offence where there was a system in place but, regrettably in this instance, it was not adhered to.

In terms of harm I am satisfied that this is at the highest level of harm involving as it does the death of a resident. I also consider that leaving the resident unattended for what amounted to some 20 minutes created an extremely high likelihood of harm being caused to the resident. I therefore consider that this should be treated as falling within Harm Category 1 and not Category 2 as senior counsel submitted.

In terms of the sentencing range the accused organisation (the Company) has a significant turnover of more than £400 million per annum. Within the guidelines this places it in the category of large organisations with turnover of in excess of £50 million.  Given I have identified the offence as fitting the medium category for culpability the guidance places a financial penalty as between £800,000 and £3.35 million. The recommended starting point is £1.3 million with the court entitled to move its position up or down from that point.

In looking at aggravating and mitigating circumstances I accept that since the incident the Company has taken significant steps to strengthen its procedures in terms of identifying, highlighting and reporting any risks for its many residents. This has included their own study and report which I am told is likely to be adopted by other providers within the care sector. The Company  has also cooperated fully in these criminal proceedings for which accounted is also taken. In addition, it is noted that in 2023, and prior to its sale, and the Home received a good evaluation from the Care Inspectorate for the care and services it provided.

Notwithstanding the very difficult circumstances that existed in the Home on the date in question in my judgement the death of Mrs Campbell was clearly avoidable. She was a very elderly and vulnerable individual. There was a plan in place to ensure her food was of a size and quantity to attempt to ensure she would not be exposed to choking with a member of staff to be present with her when she was served a meal and ate it. The plan was not implemented on the day and regrettably the members of staff on duty were either unaware of its full terms or, in some cases, its very existence.  

Whilst no blame can be attributed to the staff who were on duty the Company must accept the consequences for these failures, resulting as they have in the death of a resident to whom they owed the highest duty of care.

In addition, and very significantly, account must be taken of the fact that the Company has 4 previous convictions in Scotland within the last 6 years for directly analogous offences all of which have been dealt with by fines ranging from £200,000 to just over £600,000.

Given these failures and the significant record of previous convictions I consider the headline sentence is assessed at no less than £2.5 million.

From this figure I require to take account of the timing of this plea and the discount that should be applied. Given the size of the Company and the sums involved as well as having regard to the approach taken by the Appeal Court in the case of Scottish Power Generation Ltd v HMA [2016] HCJAC 99  I will fix this at 20% from which I will then take account of the Company’s present financial position which, whilst showing a loss in its recent accounts, appears to be moving into a much stronger position.

This Company is a huge organisation with over 190 care home in the UK to which the highest standards of Health & Safety must apply at all times. Sadly this did not happen in this case. Taking all of these matters into account, the fine will be one of £1.8 million to which a victim surcharge will also be applied."

20 October 2025