Following an extensive consultation process, the Sentencing Guidelines Council (‘SGC’) has now confirmed that the new guidelines for the sentencing of corporate manslaughter, health, safety and food hygiene offences will come into force from 1 February 2016.
This means that any offence falling within the above classes of case, and which is sentenced on or after this date, will be subject to the new guidelines. This marks a departure from other recent changes to the prosecution and sentencing of health and safety offences, when the date of the offence was key: the new guidelines apply to all cases sentenced after 1 February 2016, regardless of when the offence was committed.
The current guidelines, which came into force in February 2010, are far less prescriptive than the forthcoming guidelines, and simply provide starting figures for the sentencing of corporate manslaughter and health and safety offences. At present there are no sentencing guidelines for food hygiene offences. For the time being, the SGC suggest that sentences for corporate manslaughter should be seldom less than £500,000, and that fines may be measured in the millions of pounds. This can be contrasted with the sentences which have so far been passed for corporate manslaughter, with only one fine so far exceeding the suggested starting point. The majority of the fines handed down have been significantly less than £500,000. The current guidelines for health and safety offences causing death suggest a starting point of £100,000.
There are no specific guidelines at present for the sentencing of non-fatal health and safety breaches, although figures of up to £100,000 are common. By contrast, the new guidelines when in force will serve to dramatically increase the levels of fine handed down. The new guidelines are also much more formulaic and prescriptive, and direct courts to undertake a series of calculations in order to come to a sentencing ‘bracket’, with the final fine being adjusted from a suggested starting point within that bracket to take account of judicial discretion and the idiosyncrasies of each individual case.
Replacement guidelines were considered necessary in order to offer additional assistance to the courts when passing sentence, as well as seeking to achieve greater harmony between sentences imposed by different courts for similar offences. The new guidelines were developed as a result of a (not inaccurate) perception that there was inconsistency between courts as to the weighting afforded to different factors when determining sentences for health and safety offences, as well as between the individual sentences imposed.
The disparity between sentences is likely due, in part, to the relative infrequency with which health and safety offences come before the courts, when compared with the sentencing of more orthodox criminal offences.
In an effort to address this issue the new guidelines are intended to provide a degree of consistency between courts when passing sentencing, and more detailed guidance than currently exists in order that sentences meet the intended aims of punishment of offenders, deterrence of further crime etc.
The starting point under the new guidelines requires initially an assessment of the ‘offence category’, which includes an assessment of the defendant’s culpability and the seriousness of the harm which occurred.
The defendant will be assigned to one of the following levels of culpability:
This exercise will require an assessment of the reasons why, and the extent to which, the offender failed to meet the required standards. These categories are the same for individuals convicted of health and safety offences, although the ‘very high,’ ‘high’ and ‘medium’ levels of culpability are replaced with ‘deliberate,’ 'reckless’ and ‘negligent’ respectively. Once the level of culpability has been determined then the second stage is to determine the level of harm that has resulted (death, catastrophic injury, lesser injuries etc) as well as the likelihood of that harm occurring (high, medium and remote).
Although injury is not a component part of health and safety offences, offences being concerned more with the creation of a ‘risk’, in the vast majority of cases actual injury will have occurred.
Once these exercises have been completed courts are required to consider the defendant’s financial information, specifically turnover, and assign it to one of the following categories:
There is an additional category for ‘very large’ organisations, where turnover may be in the hundreds or thousands or millions of pounds.
The calculations result in a fine bracket, with courts then being invited to assess whether there are any other factors which may warrant adjustment of the proposed fine either towards the upper or lower end of the suggested bracket. This will include an assessment of the level of harm which resulted from the breach, as well as the likelihood of that harm occurring (high, medium and remote). Courts are also required to assess the proportionality of the fine, as well as any other case-specific factors which may be relevant to sentencing, including whether innocent employees would be affected, or whether an excessive fine would inhibit the defendant from undertaking remedial works to prevent a recurrence. Traditional aggravating / mitigating features as detailed in R v Howe will also be considered, to produce a final figure: the sentence.
The new guidelines are a lot more prescriptive than the existing ones and bring health and safety offences within a similar sentencing procedure as already exists for other criminal offences. The guidelines should increase uniformity between courts and although additional guidance is to be welcomed, there remains a need for some judicial discretion as, by nature, health and safety offences are highly fact specific. The current guidelines remain in force until 1 February 2016, although it is hard to envisage courts being able to completely exclude the new guidelines from their deliberations as to what an appropriate fine may be, but for the grace of a few weeks. It is not inconceivable that the new guidelines may encourage slightly higher fines before 1 February 2016.
However, what is clear is that from 1 February 2016 the fines imposed will be staggeringly more onerous. For example, under the current guidelines a medium-sized organisation which, through an inadvertent breach of health and safety legislation, causes an employee to suffer a lifelong physical impairment, could expect a fine of up to £100,000.
Under the new guidelines however, the calculation to be performed would be:
This results in a fine bracket of between £100,000 - £600,000 with the starting point stated to be £240,000 to then be subject to adjustment in light of the specific features of the case.
A key submission going forwards, and which must be stressed to courts, is that turnover does not equal profit. The new guidelines base the level of punishment on the financial size of a company, but in many cases high turnover results in only meagre profit. This could result in situations in which companies with a high turnover receive fines which are disproportionate to their level of culpability or harm occasioned, and which may have significant and keenly felt implications for the future vitality of the business.
Whilst it is commendable to wish to introduce more detailed guidance in the form of a fines-matrix, there is a need to balance excessively prescriptive guidance with the flexibility to deal with individual cases on their merits and ensure that fines imposed are consistent with the nature of the offending.
Bill Dunkerley
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