SENTENCING STATEMENTS

In delivering sentence, Sheriff McCallum made the following comments:

“On 12 December 2025 Multi Packaging Solutions UK Limited (who I will refer to as ‘the company’) pled guilty by way of section 76 indictment to a charge that, as an employer, they or it failed to ensure that a lifting operation involving lifting equipment was properly planned by a competent person and carried out in a safe manner; in that they or it failed properly to plan for the unloading and relocation of a ‘Horauf’ machine (that I will refer to as ‘the machine’) using lifting equipment including using a forklift truck. The consequence of this failure by the company was that an employee, Matthew King; who, along with other employees, was engaged in the relocation of the machine from a warehouse to another part of the company’s site, was struck on the head by the machine when it fell from the forks of a forklift truck; causing him severe injury, permanent disfigurement and permanent impairment.

The circumstances of the offence were narrated to the court in detail in terms of an agreed narrative when the case last called. In summary, as the company accepts in terms of the guilty plea tendered and the agreed narrative provided to the court, no proper plan for the unloading of the machine, weighing 4.5 tons and measuring 1.56 by 4.15 metres, from its initial delivery point at the company’s warehouse in East Kilbride to a location some 160 metres away within the company’s premises (where it was to be stored pending its intended transfer to another of the company’s sites in Arbroath) had been identified or put in place; nor was there an established system of work for such a task being undertaken; and that, after other initial efforts to move the machine (by lifting one end of the machine with a forklift truck and placing skates under the opposite end, then pulling the machine with the forklift truck) had been unsuccessful (because the machine kept angling off the skates and could not be moved for more than 10 centimetres before having to be lifted again and the skates repositioned), a decision was taken by the Operations Manager and others to lower the machine’s wheels to allow employees to push the machine from the warehouse to the other location using a forklift truck.

As is agreed in the narrative, this was an improvised system that the employees used in place of the task being properly planned by a person competent in lifting operations. Mr King, who was one of the employees assisting the forklift driver in the attempts to move the machine, was positioned under the body of the machine attempting to lower its right hand side wheel when the machine slid from the forks of the forklift truck and fell from a height of approximately 1.5 metres, striking him on the head.

After being given initial assistance by work colleagues on site and the arrival of paramedics, Mr King was taken by ambulance to the Queen Elizabeth University Hospital in Glasgow.  It was identified that he had a very extensive fracture at the base of his skull and that he was suffering from pneumocephalus (the presence of air or gas within the cranial cavity following head trauma). He had to be sedated and ventilated to allow a CT scan to take place to identify these issues. He underwent treatment for these injuries. For a period, he required assistance to mobilise and was unable to eat and drink properly. He has been left with nerve damage on his left side that has impacted his eyesight and hearing. He has been left with facial palsy on the left side; and reports that he does not have control over his left eye, that he has permanent double vision and a loss of peripheral vision. He requires to wear an eye patch over this eye as he is unable to blink and his eye dries out. He has had a number of surgeries to try and address this issue; however, he still cannot fully close his left eye. He has also undergone plastic surgery to address the facial palsy; and now has 50% of movement back. The incident has also had a psychological impact on him; and he has suffered from sleep disturbances. He attends cognitive behaviour therapy sessions to address the impact on his mental health and uses antidepressants and sleeping tablets. He sold his motor car; as he considers himself unsafe to drive and that to do so would put himself and others at risk. He now relies on his wife to drive him and their 3 children. Mr King was aged 39 when this incident occurred. Following this incident, Mr King returned to work just before Christmas 2024 on a phased return basis and built up to working on around a 4 days a week basis by summer 2025. At that time, he was struggling with the mental impact of incident and reduced his working days to 3 non-consecutive days a week. He was then signed off sick as of November 2025 again due to struggles with his mental health and an upcoming operation to treat the facial palsy caused as a result of the incident. That operation took place earlier this month. The operation went well, but it will take a couple of weeks for the swelling to resolve before the consultant can make a full assessment of the results of that operation. Whatever the result, Mr King will still be left with permanent nerve damage and permanent double vision. He describes it as an 'ongoing journey that has not yet levelled off' and involves ongoing contact with a number of medical professionals. He expects to return to work in some form; but does not anticipate ever being able to work full-time again. He receives support to facilitate a phased return to work including cognitive behavioural therapy to address his mental health difficulties.

On any view, the injuries sustained by Mr King were severe and have resulted in permanent disfigurement and permanent, indeed life-changing, impairment and consequences for him.

Multi Packaging Solutions UK Limited is a private limited company that operates a number of sites branded as “Smurfit WestRock” in the United Kingdom and in Europe; including sites in East Kilbride, Hamilton and Arbroath. The company specialises in the manufacture of fibre-based paper packaging for the pharmaceutical, healthcare, cosmetics and food and beverage industries. In 2023, the company had a workforce of around 2,500 employees with around 240 people employed at WestRock East Kilbride where this incident occurred. The company’s turnover to the end of the financial year in 2023 was in excess of £244 million; with a profit before tax of £44,405,000 and a profit after tax of £33,919,000.

Whilst, as yet, there is no sentencing guideline in Scotland in respect of health and safety offences, the court is permitted to have regard to the applicable definitive guideline in England and Wales; namely that from 2016. In terms of the definitive guideline in England and Wales, the company would be characterised as a ‘large organisation’, ie an organisation with a turnover of £50 million or over per annum. No issue is taken by Mr Smith KC on behalf of the company with that characterisation.

The company has no previous convictions; and I accept the submission made on its behalf by Mr Smith KC that, hitherto, the company has shown a responsible attitude to health and safety; and devotes considerable effort and resources to ensure that its duties to employees, contractors and visitors are met.

HSE Inspectors first attended the site or locus on 7 November 2023 to begin their investigation. Those investigations ultimately established that the company had failed to comply with the requirements of Regulation 8 of the Lifting Operations and Lifting Equipment Regulations 1988; and thus that an offence under s. 33 (1) (c) of the Health & Safety at Work etc. Act 1974 had been committed. The characteristics of the load (ie the machine), including its weight, size, centre of gravity and lifting points, had not been adequately assessed or planned; and no system had been put in place to ensure lifting it could be carried out safely. HSE sent a Notification of Contravention letter to the company on 14 December 2023, notifying it that a breach of health and safety law had taken place; and requiring the company to provide details of the controls they had implemented to prevent similar incidents occurring in the future.

The company responded to the HSE Notification of Contravention letter stating:-

-  Communication: information about any high-risk tasks to be performed are to be posted on the site’s Daily Management System board so that personnel are aware of the activity;

- Training: implementation of training on lifting of loads; and site leaders to be trained on job safety planning;

- Pre-job briefings: pre-job briefings to be executed prior to any non-routine movement of equipment; and spot verification of high-risk tasks and job safety briefing processes relating to lifting were to be carried out;

- Lifting procedures: a site lifting team that is trained to review lifting plans and operations was to be established;

- Management of change: a system to ensure that non-routine equipment lifting operations are appropriately incorporated into the site’s management of change was to be introduced.

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.

As I have already observed, whilst, as yet, there is no sentencing guideline in Scotland in respect of health and safety offences, the court is permitted to have regard to the applicable definitive guideline in England and Wales, namely that from 2016. 

I accept the submission by Mr Smith KC on behalf of the company, under reference to various authorities cited by him, and in particular Scottish Power Generation Ltd v HMA 2017 JC 85 ; Milligan v HMA [2015] HCJAC 84 and Sutherland v HMA 2016 SLT 93,  that Scottish courts have made it clear that a court such of this should not apply a definitive guideline from England and Wales in a rigid or mechanistic fashion; but, rather, should utilise such a guideline as a cross-check in identifying the appropriate sentence to impose primarily under reference to our own distinct sentencing regime.

Whilst that submission is or was made on behalf of the company, Mr Smith KC nevertheless still prays or prayed in aid certain aspects of the definitive guideline in England and Wales in his submissions on behalf of the company.

Indeed, under reference to the definitive guideline in England and Wales, Mr Smith KC for the company invited the court to assess culpability in the ‘Medium’ category.

However,  in my assessment, under reference to that definitive guideline, the company’s culpability in this case would fall into the category of ‘High’; as, in my assessment, the company simply  failed to put in place measures for the safe lifting and movement of a machine of the type involved in this case that would be recognised standards in the industry.

The assessment of culpability also has to be viewed against a background where, given the previous failed attempt to lift and move the machine by lifting one end of the machine with a forklift truck and placing skates under the opposite end, then pulling the machine with the forklift truck, it would or should have been obvious that the safe lifting and moving of the machine was a very problematic endeavour that required proper planning.

Indeed, in assessing the level of the company's culpability, I note that, in his written submissions on behalf of the company, Mr Smith KC submitted that, unlike previous instances when other machinery had been delivered to the plant and proper planning and arrangements had been put in place, including contracting with third party specialist hire companies, the failure to do so on this occasion in regards to this machine was 'inexplicable'; and a matter of 'profound regret'.

In this particular case, and contrary to the submissions made by Mr Smith KC on behalf of the company, if one were applying the definitive guideline in England and Wales, in my assessment, the seriousness of harm risked would fall into Level B; and, due to a high likelihood of harm, Harm Category 2 would apply. In reaching this assessment, I take into account that, on the agreed narrative, the previous failed attempt to move the machine had resulted in the machine repeatedly angling off the skates that had been placed under it.

For a ‘large organisation’, that is one such as the company in this case with a turnover or equivalent in excess of £50 million per annum, in terms of the definitive guideline in England and Wales, the starting point for a financial penalty to impose in such a case would therefore be a fine of £1,100,000; with a sentencing range of £550,000 to £2,900,000.

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

In terms of aggravating factors, I accept the submissions by Mr Smith KC on behalf of the company, and I am satisfied, that none of the aggravating factors identified by Lord Justice Clerk Dorrian within Scottish Sea Farms Ltd, Logan Inglis Ltd  v HMA 2012 HCJAC 11 at paragraph [18] apply in this case; nor are any of the aggravating factors listed within the definitive guideline in England and Wales present.

Looking to the mitigating factors referred to in Scottish Sea Farms Ltd, Logan Inglis Ltd v HMA; the definitive guideline in England and Wales; and in terms of Mr Smith KC’s submissions on behalf of the company, I find that the company:

-  has no relevant previous convictions;

-  generally has a good safety record and responsible attitude to health and safety;

-  self-reported this incident to HSE and co-operated in HSE’s inquiries;

-  has taken effective steps to remedy the deficiency that occurred;  and

- has expressed contrition and taken active steps to assist Mr King with the consequences of the injuries that he sustained.

In addition, I accept that, by pleading guilty, the company has accepted responsibility for this incident.

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 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 of sentences detailed to in the definitive guideline in England and Wales that I have previously referred to, looking to the lack of aggravating factors and the mitigating factors present in this case, I am satisfied that a headline sentence of a fine of £650,000 is no more severe than is necessary to achieve the appropriate purposes of sentencing in this case.

The court is also required by law to take into account the stage in the proceedings at which, and the circumstances in which, the accused indicated their intention to plead guilty.

This was a plea of guilty under section 76 procedure. In this case, the Procurator Fiscal Depute has confirmed that, from early 2025, it was clear that the matter would resolve by way of a guilty plea, significantly reducing the amount of preparatory work required by the Crown and significantly increasing the utilitarian value of the plea; and that the section 76 letter was, in effect, tendered at the first realistic opportunity.

Therefore, in the exercise of my discretion, I will modify or reduce the headline sentence or fine of £650,000 to a fine of £433,333.

The fine is to be paid in 28 days and is recoverable by civil diligence in default of payment.

Furthermore, as the offence was committed after 25 November 2019, a victim surcharge is to be applied. That surcharge is 7.5% of the fine imposed; which is £32,500.”