SENTENCING STATEMENTS

Upon sentencing, Sheriff Kevin McCallum KC made the following remarks:

"Today, 20 May 2026, SMW 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 measures were taken in compliance with the appropriate health and safety regulations in force; in that they or it failed to ensure that work equipment provided by the Company, namely a surge hopper, was fitted with a fixed guard to prevent access to an internal part of the surge hopper, namely the rotary lock valve; with the consequence that, on 8 June 2023 at the Company’s premises at Daldowie Fuel Plant in Uddingston, the right hand of Mr Garry Roberts, who was employed by the Company as a shift operator, and who was at the material time attempting to clear a blockage by hand within a rotary lock valve, came into direct contact with the moving blades within the rotary lock valve; 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.

"Due to a miscommunication over the radio between the senior operator in the control room and Mr. Roberts as to whether the rotary lock valve was turned on or off at the material time, and believing that the rotary lock valve was turned off, Mr Roberts inserted his right hand down into that part of the hopper, where his hand made contact with the moving blades, causing three fingers on his right hand to be partially severed.

"In terms of the guilty plea tendered and the agreed narrative provided to the court, the Company accepts that, whilst the Company had a specific safe system of work to address the risks of clearing blockages on surge hopper rotary lock valves that Mr Roberts had last been trained on in April 2023, the Company had failed to ensure that access to dangerous parts of machinery was prevented; and that it would have been reasonably practicable to ensure that access to these dangerous parts was prevented by using a fixed guard.

"Following the incident on 8 June 2023, Mr Roberts was taken to the Queen Elizabeth University Hospital, Glasgow. As already indicated, as a result of the incident, the index, middle and ring fingers of Mr. Roberts’ right hand were all partially severed. Subsequently, the remaining lower parts of all three fingers had to be surgically amputated; because it was not possible to save those remaining parts of the fingers due to the extent of the injuries. Mr Roberts was, or is, right-handed.

"Following his release from hospital on 11 June 2023, Mr. Roberts attended as an outpatient on a weekly basis, and attended also at his GP practice, for review of his injuries.

"Mr. Roberts also underwent a course of physiotherapy, which he continues to receive as of today’s date. He also received occupational health input and psychological treatment and he continues to attend the plastic surgery unit of the hospital on an outpatient basis.

"In April 2026, Mr. Roberts reported that he continued to experience pain and stiffness in his right hand, which was also very sensitive to cold weather. He also continued to experience physical difficulty with everyday tasks such as eating, washing, and cooking. In answer to an inquiry on these matters, Mr. Roberts confirmed this week that there has been no change in regard to these matters since April 2026.

"Mr Roberts was provided with prosthetic fingers for his right hand, although these are not functional and are for aesthetic purposes only.

"Mr. Roberts has not worked since this incident. He was previously advised that he would be unable to return to the same type of work; and in answer to an inquiry this week, he confirmed that he will not be returning to work.

"Mr Roberts was aged 57 at the time of this incident and the sustaining of these injuries. On any view, the injuries sustained by Mr Roberts were severe and have resulted in permanent disfigurement and permanent, indeed life-changing, impairment and consequences for him.

"SMW Limited is a private limited company whose principal activity is the processing of byproducts from wastewater treatment plants into waste-derived fuel that takes the form of pallets; and it is for that purpose that the Company owns and operates Daldowie Fuel Plant in Uddingston. At the time of this incident, the Company employed approximately 74 staff at the plant.

"The Company’s accounts posted for the year ending 31 December 2024 (this being the latest set of accounts available), recorded turnover of £27.5 million and a profit after tax of £2 million.

"Whilst, as yet, there is no sentencing guideline in Scotland in respect of health and safety offences such as this, the court is permitted to have regard to the applicable definitive guideline in England and Wales; namely that from 2016.

"Scottish courts have, however, 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.

"In terms of the definitive guideline in England and Wales, the Company would be characterised as a ‘medium organisation’, that is, an organisation with a turnover or equivalent of between £10 million and £50 million per annum. No issue is taken by Mr Gray 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 Gray KC that, hitherto, the Company has shown a responsible attitude to health and safety.

"A HSE investigation commenced in late June 2023, after the Company had self-reported the incident on 16 June 2023.

" HSE investigation found that it was customary for blockages in surge hopper rotary lock valves to be cleared by operators who were in two-way radio communication with control room staff, who turned the rotary lock valves on or off. There was no line of sight from the control room to the surge hoppers and the radios used for communication with the control room could suffer from interference, and ambient noise levels within the plant could be high.

"It was established that the Company had a specific safe system of work to address the risks of clearing blockages on the surge hopper rotary lock valves which Mr Roberts had last been trained on in April 2023.

"The HSE investigation, however, concluded that the Company had failed to ensure that access to dangerous parts of machinery was prevented; and that it would have been reasonably practicable to ensure that access to these dangerous parts was prevented by using a fixed guard.

"Following this incident and an internal review, the Company took the following remedial measures:

• fitting of control padlocks to the metal clips over the gaiters, meaning that gaiters cannot be lowered or removed without a key, which only shift team leaders have possession of;
• safety coordinators (shift team leaders) to supervise the authorised person (shift operator), when isolating the machinery before removal of the control padlock and remain to supervise the rest of the work;
• the standardisation of a hand tool, to avoid manual digging and clearing of blockages, by hand; and
• retraining of all relevant staff.
  

"In March 2024, the Company engaged a designer and agreed a design for an intrinsically safe interlock guard using a castell key system, which was installed on all drying lines.

"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. 

"Under reference to that definitive guideline, and under reference to Mr Gray KC’s submissions on the Company’s behalf, I am narrowly persuaded to assess the level of the Company’s culpability in this case as falling into the category of ‘Medium’.

"However, in this particular case, and contrary to the submissions made by Mr Gray 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.

"On that latter issue, given that the blockage clearing process involved employees such as Mr Roberts inserting their hand or hands into machinery with dangerous parts such as moving blades; then, in the absence of a mechanism to prevent access to such dangerous parts, such as by the use of a fixed guard, the likelihood of harm was, in my assessment, high.

"Indeed, in my view, that is, in effect, conceded by Mr Gray KC on behalf of the Company at paragraph 9 of his helpful written submissions where it is stated that:

‘…Consistent with proper health and safety management the activity was one which was the subject of a detailed risk assessment and it was appreciated that potential access to the rotating blades by a shift operator of the rotary lock valves was an obvious hazard which required to be addressed by the identification and implementation of appropriate control measures. ‘

"For a ‘medium organisation’, that is one such as the Company in this case, 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 £240,000; with a sentencing range of £100,000 to £600,000.

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

"In terms of aggravating factors, I accept the submissions by Mr Gray 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 Gray 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.

 "Further, I accept that the Company’s expeditious settling of Mr Roberts’ associated civil action for reparation arising out of this incident is further evidence of the Company’s responsible attitude and contrite response to this incident.

"I also accept that, by pleading guilty, the company has separately accepted criminal 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 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 £180,000 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 mid 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 £180,000 to a fine of £120,000.

"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 £9,000.

"The fine is to be paid within 3 months; and is recoverable by civil diligence in default of payment."

20 May 2026