The ‘Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences’ Sentencing Guidelines (the ‘Guidelines’), issued by the Sentencing Council, have just come into force in England & Wales, for those sentenced on or after 1 February 2016, regardless of the date of the offence.
The Guidelines are designed to ensure that sentences and fines for these offences are set at a level commensurate with the severity of the offence. The Guidelines intend that any fine imposed, must be sufficiently substantial to have a real economic impact on the offending organisation and to demonstrate the importance of securing a safe working environment for employees and members of the public affected by their activities;
Focusing on Health and Safety Offences and Corporate Manslaughter, the courts in England & Wales must now consider the Guidelines when determining an appropriate sanction as follows:
- In assessing the seriousness of the offence, the Courts will examine the risk of harm which employees or the public affected by their activities were exposed to. The court does not require proof that actual harm was caused.
- Courts will look at an organisation’s annual turnover or equivalent as a starting point for determining the level of a fine. While there is no upper limit on total fines, the levels of fines for health and safety breaches are between £50 and £10 million and fines for corporate manslaughter are between £180,000 and £20 million. These upper limits reflect organisations with a turnover of more than £50 million and the Guidelines allow scope to move outside of the suggested ranges for organisations whose turnover greatly exceeds these brackets.
- The courts will require access to comprehensive accounts for the last three years. This information should relate to the organisation before the court, however if it is demonstrated that the resources of a linked organisation are available, they may be considered.
- Once the level of fine is determined the court will consider if any aggravating or mitigating factors should be applied, which would adjust the fine, upwards or downwards. Although not exhaustive, these aggravating factors may include evidence of previous convictions, evidence of cost-cutting at the expense of health & safety and/or evidence of a poor health & safety record. Mitigating factors may include remedial action having been taken, a high level of cooperation and a clean record in terms of previous convictions.
- The courts will take a ‘step back’ to ensure that the level of the fine reflects the seriousness of the offence and the financial circumstances of the offender having taken into account aggravating and mitigating factors.
- The Guidelines are intended to bring home the importance of health and safety compliance. As a result, the Court will consider the impact of the fine on the offender’s ability to improve health and safety standards and any adverse effect a fine will have on staff, service users, customers and impact on the local economy (but not shareholders or directors).
- Any credit for a guilty plea will only be taken into consideration after the above steps have been applied and the appropriate sentence identified by the court.
Where the offence has resulted in loss or damage, as many of these cases do, the court must also consider whether to make a compensation order. However due to the complexity of such compensation events the majority of these cases will continue to be dealt with through the civil courts.
In light of these changes organisations should review their health and safety polices, ensure that employees receive all necessary training and that the directors, managers and employees of the organisation are aware of their own individual obligations as well as the corporate duty to reduce the risk of harm to employees and members of the public. Whilst the Guidelines increase the potential fines associated with successful prosecutions, the damage to corporate reputation through the use of Publicity Orders cannot be underestimated.
Although the Guidelines are not currently binding in Northern Ireland, Courts in Northern Ireland may refer to them for guidance on sentencing due to the similarities in Health & Safety legislation.
Click here for access to the Sentencing Guidelines.
If you have any questions on these new Sentencing Guidelines please contact Kathy McGillie, Partner and Head of Tughans’ Health & Safety and Insurance Department for further information.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.