New health and safety sentencing guidelines launched
As reported last month, new sentencing guidelines have been published today by the Sentencing Council. The updated guidelines aim to ensure a consistent, fair and proportionate approach to sentencing organisations or individuals convicted of corporate manslaughter, health and safety and food safety and hygiene offences and can be downloaded from the Sentencing Council website.
Offences that come under the guidelines are very varied and could include a building firm that causes the death of an employee by not providing the proper equipment for working at height, a restaurant that causes an outbreak of e. coli poisoning through unsafe food preparation, a manufacturer that causes injury to a new worker by not providing training for operating machinery, or a gas fitter whose sub-standard work leads to the risk of an explosion in someone’s home.
The publication of the guidelines ensures that, for the first time, there will be comprehensive sentencing guidelines covering the most commonly sentenced health and safety offences and food safety offences in England and Wales. Until now, there has been limited guidance for judges and magistrates in dealing with what can be complex and serious offences that do not come before the courts as frequently as some other criminal offences.
The introduction of the guidelines means that, in some cases, offenders will receive higher penalties, particularly large organisations committing serious offences – such as when an organisation is convicted of deliberately breaking the law and creating a high risk of death or serious injury. It is not anticipated that there will be higher fines across the board, or that they will be significantly higher in the majority of cases to those currently imposed.
The increase in penalties for serious offending has been introduced because, in the past, some offenders did not receive fines that properly reflected the crimes they committed. The Council wants fines for these offences to be fair and proportionate to the seriousness of the offence and the means of offenders.
In order to achieve this, the guidelines set out sentencing ranges that reflect the very different levels of risk of harm that can result from these offences.
Corporate manslaughter always involves at least one death, but health and safety offences can vary hugely; they may pose the risk of minor harm or lead to multiple fatalities. Food offences are also wide-ranging. They could involve poor hygiene or preparation standards in a restaurant kitchen that put customers at risk of illness or that cause fatal food poisoning.
The sentencing ranges also take into account how culpable the offender was. This could range from minor failings in procedures to deliberately dangerous acts.
While prison sentences are available for individuals convicted of very serious offences, most offences are committed by organisations and therefore fines are the only sentence that can be given.
The guidelines use the turnover of the offender to identify the starting point of the fine. Turnover is used as this is a clear indicator that can be easily assessed.
However, turnover is never the only factor taken into account. The guidelines require the court to 'step back', review and adjust the initial fine if necessary. It must take into account any additional relevant financial information, such as the profit margin of the organisation, the potential impact on employees, or potential impact on the organisation’s ability to improve conditions or make restitution to victims. This means sentences will always be tailored to the offender’s specific circumstances. Fines may move up or down or outside the ranges entirely as a result of these additional mandatory steps.
Legislation requires that any fine imposed must reflect the seriousness of the offence and take into account the financial circumstances of the offender. All factors being equal, a similar level of fine given to a large, wealthy corporation on the one hand and a sole trader with a modest turnover on the other would be unfair, just as the same speeding fine given to a premiership footballer and someone on an average income would not achieve the same level of punishment or deterrence.
The UK’s record on worker fatalities is good, but where such offences are committed, the Council believes fines should be available that reflect the seriousness of the offence. As well as causing fatalities, health and safety offences may risk or cause a wide spectrum of injury and illness, including a life-changing disability or health condition for victims.
While addressing remedial action with offenders is the responsibility of the Health and Safety Executive rather than the courts, the guidelines do provide for remedial orders to be made by the court in addition to or instead of punishment in cases where they may be appropriate. The guidelines also include a range of mitigating factors, which allow for voluntary positive action to remedy a failure on the part of offenders to be reflected in sentences.
The guidelines will come into force in courts on 1 February 2016.
According to Kathryn Gilbertson, Director at Greenwoods Solicitors LLP:
"This is a game changer - it’s not chitchat. Courts will impose these fines. Rather than run the risk, companies should seek specialist lawyers as soon as an incident occurs."
To ensure that you are fully up to date with these new guidelines International Workplace offer the IOSH accredited Corporate Health and Safety Briefing either for individuals at their Executive Centre in central London or as in-company training at your business. For more information call Jack on +44 (0)871 777 8881.