UPDATE: From 1 February 2016 a new Definitive Guideline of the Sentencing Council on Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences will come into effect.
English Health and Safety legislation applies to corporate entities operating in England and Wales and may apply to unincorporated bodies (such as partnerships or clubs) where criminal liability can be established. In addition, prosecutions may be brought against directors, officers or employees as criminally culpable individuals.
The current position for the sentencing of health and safety offences is that there is no set penalty or tariff in place and courts consider each case on an individual basis. Whilst there has been a definitive guideline available in relation to corporate manslaughter and health and safety offences which caused death since February 2010, there are no such guidelines to assist the courts in sentencing other health and safety offences consistently.
The situation is made worse by the fact that there are relatively few health and safety cases that appear before sentencers, and so as a result of the relative infrequency with which magistrates and judges sentence these cases, there can be a lack of familiarity with them.
Furthermore, for offences committed on or after 12 March 2015, Magistrates now have the power to impose unlimited fines for certain offences, including health and safety and food safety and hygiene offences . Therefore the need for guidance to assist
Magistrates in applying fair and proportionate sentences is even more necessary in light of these new sentencing powers.
The new Definitive Guideline of the Sentencing Council on Health and Safety Offences, Corporate Manslaughter and Food Safety & Hygiene Offences will apply to any matter that falls to be sentenced on or after 1 February 2016, regardless of when the offence was committed.
In addition to achieving greater consistency, it is clear that the Definitive Guideline will generally result in much greater fines being imposed. The key objectives of these guidelines are deterrence and the protection of the public.
“The objective of prosecutions for health and safety offences in the work place is to achieve a safe environment for those who work there and for other members of the public who may be affected. A fine needs to be large enough to bring that message home where the defendant is a company not only to those who manage it but also to its shareholders.”
Taking medium sized companies as an example (where the turnover or equivalent is between £10 million and £50 million), under the new Definitive Guideline the sentencing range will be from a minimum of £1000 fine for the lowest harm and culpability with significant mitigating factors, up to a £4 million fine for the most serious offending.
The court would first consider the culpability of the offender. There are four categories of culpability:
Low – minor failings occurred as an isolated incident, or the offender did not fall far short of the appropriate standard;
Medium – systems, for example, were in place but these were not sufficiently adhered to or implemented;
High – Offender fell far short of the appropriate standard (e.g. failing to put in place measures that are recognised standards in the industry; ignoring concerns raised by employees or others; allowing breaches to subsist over a long period of time); or
Very High – Deliberate breach or flagrant disregard for the law.
The court would then consider the risk of harm created by the offence. This amounts to a shift of emphasis to focus more on the risks rather than the consequences of offending. The risk of harm is addressed by the court considering the seriousness of the harm risked and the likelihood of the harm arising.
In addition, the number of workers or members of the public exposed to the risk of harm will be a relevant aggravating factor that may result in the court moving up a harm category or substantially moving up within the category range. This will also be the case in relation to whether the offence was a significant cause of actual harm (i.e. more than minimally contributed, though it does not have to be the principal cause).
Size of organisation
For Organisations, the court will focus on the annual turnover or equivalent to determine the appropriate starting point for a fine (which would be adjusted in accordance with relevant aggravating and mitigating features).
Other financial information such as profit before tax, directors’ remuneration, loan accounts and pension provision and assets disclosed by the balance sheet may also be factors the court considers to ensure that the proposed fine is proportionate.
In exceptional circumstances, financial information relating to the resources of a linked organisation which are demonstrated to the court as being available may be taken into account. This means that although normally only financial information relating the organisation before the court is relevant, exceptionally the court may also look to the resources of a parent company when assessing the financial status of a wholly owned subsidiary, for example, and its ability to pay a fine.
The new Definitive Guideline will replace the previous 2010 Definitive Guideline; from February 2015 the offence range will be £180,000 – £20 million fine; the previous sentencing guidelines stated that ‘the appropriate fine will seldom be less than £500,000 andmay be measured in millions of pounds’.
1 – Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012
2 – R v F Howe & Son (Engineers) Ltd  2 All ER 249 at 25
For more information please contact Andrew Oldland QC on firstname.lastname@example.org or 01392 687690