Tougher sentencing proposed for health and safety, corporate manslaughter and food offences

13 Feb 2015
HSE has reported that a building firm was fined £200,000 for corporate manslaughter and £20,000 for health and safety breaches following the death of a worker who fell through a skylight.

The owner was sentenced to eight months in prison, suspended for two years; 200 hours unpaid work; and was slapped with a publicity order, requiring him to advertise what happened on the company’s website and in a local newspaper, and costs of £31,504.77. Here the sentencing was tough; however; sentencing for serious health and safety offences is set to get tougher.  Are you aware of the Sentencing Council’s proposed sentencing guidelines for health and safety, corporate manslaughter and food safety offences? No, read on.

Tougher sentencing on its way

Under the proposed sentencing guidelines large businesses found guilty of the most serious health and safety offences could face significantly increased sentences, for example, fines for corporate manslaughter could be as high as £20 million for a business with a turnover in excess of £50 million, whilst for fatal health and safety offences they could reach up to £10 million.  The Sentencing Council’s proposals are presently under consultation, closing on 18 February 2015.  Click here to view the consultation.

Aim of proposed sentencing guidelines

The aim of the guidelines is to promote a consistent approach to sentencing for health and safety, corporate manslaughter and food offences and to ensure all sentences are proportionate to the offence committed and in relation to other offences.

Proposed sentencing structure

It is proposed the courts will adopt the following structure when sentencing businesses and individuals.

Step 1: determining the offence category

The court should consider the harm and culpability factors to identify the seriousness of the offence.  The court should ask:

  • How foreseeable was serious injury? The more foreseeable it was, the graver will be the offence.
  • Did the defendant fail to comply with advice from regulators, authorities or employees?
  • Did the defendant fail to comply with industry standards?
  • How adequate was training, supervision or reporting arrangements?
  • How widespread was non-compliance?
  • Was there more than one death or a high risk of further deaths, or serious personal injury in addition to death?

Step2: starting point and category range  

The court should obtain the business’s financial turnover to determine whether the organisation is: micro, small, medium, large or very large.  The court will then identify a starting point and range for the appropriate level of fine. The court will also consider aggravating and mitigating factors to make adjustments from the starting point.  The proposed starting points and ranges are provided here:

Micro

Turnover up to £2 million

offence category

starting point

category range

A (more serious)

£450,000

£270,000 - £800,000

B

£300,000

 

Small

Turnover £2 million to £10 million

offence category

starting point

category range

A (more serious)

£800,000

£540,000 - £2,800,000

B

£540,000

£350,000 – £2,000,000

Medium

Turnover £10 million to £50 million

offence category

starting point

category range

A (more serious)

£3,000,000

£1,800,000 - £7,500,000

B

£2,000,000

£1,200,000 - £5,000,000

Large

Turnover more than £50 million

offence category

Starting point

category range

A (more serious)

£7,500,000

£4,800,000 - £20,000,000

B

£5,000,000

£3,000,000 - £12,500,000

Very Large

where the turnover is outside the threshold for a large organisation, the court should move outside the suggested range to achieve a proportionate sentence

Step 3: is the proposed fine proportionate to the defendant’s means?

The court should consider whether the suggested fine is proportionate to the means of the defendant.

Step 4: other factors that warrant adjusting the proposed fine

The court should consider any wider impacts the proposed fine may have on innocent third parties, e.g. employees and service users, where necessary the fine should be adjusted to avoid unjustifiable wider consequences.

Steps 5 - 9:

Are standard steps in Sentencing Council guidelines, including factors to be considered for the reduction of a penalty, e.g. early guilty plea and previous good record.

Comment

The proposals are serious for businesses and they should be alert to the fact that tougher sentencing is definitely on its way.  The new sentencing landscape will align the sentencing for serious health and safety offences with a defendant’s financial means, culpability and likelihood of harm resulting in increased sentences and fines.  The Council has said that fines should be big enough to have a real economic impact “which will bring home to the offending organisation the importance of achieving a safe environment for those affected by its activities.” Sentencing in relation to low level offences is unlikely to change as they are viewed as being proportionate.  It is unlikely that objections to the proposals will alter the Council’s proposed approach to sentencing.  At present the proposals remain in draft form and do not propose to change existing legislation.  The Council expects to publish the definitive sentencing guidelines for these offences by the end of 2015, with increased sentences and fines taking effect from early 2016.  In the interim, businesses should concentrate on implementing adequate health and safety measures that both protect their workers and the public from injury, and their business from exposure to financial and custodial penalties.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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