SENTENCING STATEMENTS

Upon sentencing, Sheriff Mays made the following remarks:

"James Jones & Sons (Pallets and Packaging) Limited (who I will refer to as “the company’’) pled guilty by way of section 76 indictment to a charge that as an employer at factory premises in Deans Industrial Estate, Livingston, it failed to enforce a safe system of work for the operation of a pallet inspection line by firstly, failing to ensure that the safety fence around the perimeter was maintained so that an employee who required to access the inspection line near moving and rotating parts of the line was unable to do so except by the means of an interlocked gate. Secondly, by failing to provide the supervision necessary to ensure that an employee who required to work within the perimeter of the safety fence in order to clear a blockage or for other purpose had access to the area by means only of the interlocked gate which caused the power supply to be isolated. 

"The consequence of those failures was that on 23 November 2023 an employee,  Mr Munjaranji, was caused severe injury, impairment and permanent disfigurement.

"On that date Mr Munjaranji, who was working in the course of his employment as a pallet repair operative, accessed the machinery through an insecure fence panel to cut away shrink wrap surrounding pallets. Whilst doing so he became entangled in a drive shaft forming part of the machinery.  He was trapped in the machinery for about 45 minutes before being freed.

"He sustained a midshaft fracture of the left humerus, radial and ulna. He dislocated a finger. He required surgery to repair the damage to the bones and had metal plates fitted within his arm. He required to have a section of bone shaved down in his left arm during surgery leaving his left arm slightly shorter than his right arm. He also has significant scarring running nearly the whole length of his upper arm and scarring to his wrist. The range of motion in his left arm is impaired currently. These injuries are severe, caused permanent disfigurement and impairment, and no doubt will have affected Mr Munjaranji significantly.

"The company accepts that, while it had a safe system of working in place, it failed to ensure that access to the dangerous parts of the machinery was prevented, as there was a piece of insecure fencing, and also accepts that Mr Munjaranji was not supervised appropriately.

"To provide some context, the effect of entering through the interlocked gate is that the power to the machinery is disabled allowing employees to clear a pallet jam or carry out repairs safely.

"There is a perimeter fence around the machinery preventing access to the pallet inspection line. That fencing had been subject to a number of repairs by the company. At some point in the past, a section of the fence had fallen off its brackets. This was repaired by re-securing it by suspension from a metal strut along the top and securing it at the base by nuts and screws. At the time of the incident the nuts and screws had become detached so that the panel only remained attached at its upper end. The fence guard was not therefore fixed in place. I note that efforts had been made (by persons unknown) to give the insecure fence guard the appearance that it was in a fixed condition, effectively deceiving the observer. From a visual check, it would not have been obvious that the fence guard was insecure. No physical check of the fence guard was carried out. It appears that a failure to maintain routine procedural supervisory checks on the inspection/repair line resulted in the behaviour of bypassing the safe system of work occurring.

"At the time of the accident the supervisor was on leave, and an interim relief supervisor had been deployed. Due to issues with absenteeism, resulting in staff shortages, he was also deployed in other duties involving driving a forklift truck when necessary.

"I was not provided with any information as to why an employee would have chosen to access the machinery through an insecure fence panel rather than through the interlocked gates. I can only infer that it was perhaps quicker to deal with any blockage or removal of shrink wrap that way, rather than opening the interlocked gate which caused the machinery to stop. Mr Munjaranji was trained in how to access the interlocked guarded area for the purpose of repairing a pallet jam approximately 13 months before the date of the incident. I have seen evidence of the relevant training log signed by him, which provides a set of clear, step-by-step written instructions illustrated by photographs as to the process which should be followed to ensure that the interlocked gate can be accessed safely for the purposes of clearing a pallet jam. I would observe that the action of a victim is not considered a contributory event for sentencing purposes. Employers are required to take steps to protect workers and others who may be neglectful of their own safety in a way which is reasonably foreseeable.

"In determining sentence in this case, I have had regard to the Principles and Purposes of Sentencing Guidelines, including that sentences must be fair and proportionate and should be no more severe than is necessary to achieve the appropriate purposes of sentencing in each case. I have also had regard to the English Sentencing Guidelines in respect of health and safety offences (Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline) as a cross check in identifying the appropriate sentence. I have considered various Scottish authorities, including  Scottish Sea Farms Ltd v HMA 2012 SLT 299 and Scottish Power Generation Ltd V HMA  2017 JC 85. 

"The company is a private limited company. At the date of the offence it had around 620 employees. The latest set of accounts provided for 2024 shows that it had a turnover of £74 million and a profit after tax of approximately £1.8 million. In terms of the English sentencing guidelines it falls into the category of being a large company. Mr Gray KC on behalf of the company accepted that.

"The company has no previous convictions and no previous enforcement history with the authorities. I accept the submissions of Mr Gray KC that the failing was not deliberate or indicative of a lax attitude to duties to maintain the fence guard, but it appears in part to have arisen due to a deliberate attempt having been made to conceal the insecure state of the fence guard. I accept that the company prior to the incident had shown a responsible attitude to health and safety.

"Following the incident the company carried out a comprehensive investigation which resulted in a  number of steps and remedial measures being taken, including

• the demotion of the relief supervisor
• immediate repairs to the fence guard
• refresher training provided to all employees on procedure regarding accessing the interlocked guarded area
• an increased number of safety inspections
• a review of all workplace risk assessments and internal audit procedures and identification of and improvements to said audits
• a Company wide safety culture initiative to increase hazard and near miss reporting

"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 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.

"Having regard to the English Sentencing Guidelines I accept the submissions of Mr Gray KC that the level of the company’s culpability in this case falls into the category of “medium”. The company fell short of the appropriate standard. A safe system of work was in place but it was not sufficiently adhered to or implemented.

"Mr Gray KC submits that the seriousness of harm risked by the failings would fall into level B and that the likelihood of such harm arising was 'low' resulting in a harm category of 4.

"I accept that the seriousness of harm risked falls within level B. I am not however persuaded that there was a low likelihood of harm.

"The clearing of a blockage or removing of shrink wrap involved employees such as Mr Munjaranji coming into contact with machinery with moving parts in which they could become entangled and injured (as happened in Mr Munjaranji’s case). Given the offence dates cover 1 November 2023 to 23 November 2023 there was a period of just over 3 weeks when fence guard was insecure, allowing employees to access machinery without power to the machinery being isolated. It appears that a practice of doing so may have developed. It is submitted that the offence exposed only Mr Maunjaranji to the risk of harm. I do not accept that. I consider that any employee working on the pallet line was exposed to the risk of harm during the relevant period. In addition, it is accepted that the offence was a significant cause of actual harm. As a result, I consider there was a medium likelihood of harm and that harm category 3 would apply.

"In respect of a large organisation such as the company, the starting point for a financial penalty would be £300,000 with a sentencing range of £130,000-£750,000.

"I next turn to consider any aggravating and mitigating factors which apply.

"None of the aggravating factors set out in Scottish Sea Farms Ltd nor any of the aggravating factors referred to in the English Guidelines are applicable in this case.

"In contrast, most of the mitigating factors set out are applicable. The company has

• expressed remorse
• admitted responsibility promptly
• taken effective steps to remedy the deficiencies identified
• no previous convictions
• a good health and safety record

"Considering the lack of aggravating factors and the mitigating factors present in this case, I consider that a downward adjustment from the starting point identified in the Guidelines should be made. I consider that a headline sentence of a fine of £240,000 is sufficient to achieve the purposes of sentencing.

"The company’s turnover exceeds the threshold for large organisations. The average turnover over the last three years exceeds £80 million and the profits of the company average around £6 million, although 2024 seems to have been a very challenging year and despite turnover being £74 million the profits are much lower, being less than £2 million. I do not consider any further adjustment is required after considering the step 3 proportionality check relative to the means of the company.

"The company pled guilty at the earliest opportunity. There is utilitarian value in that guilty plea. There is authority for the view that in some cases involving large fines, a full one third discount would involve too substantial a sum of money relative to the total. The courts have on occasion, despite the early plea, offered discounts of less than one third. However, considering the whole circumstances of this case, I exercise my discretion to modify the headline sentence by the full one third discount. I therefore modify the headline sentence of £240,000 to £160,000.

"A victim surcharge requires to be applied. That is 7.5% of the fine imposed which is £12,000.

"The fine is to be paid within 3 months."

8 June 2026