New Sentencing Guidelines: Surprising Consequences?
The new sentencing guidelines are being viewed as the biggest change in Health and Safety legislation since 1974 when the ‘Health and Safety at Work Act’ was introduced.
New Sentencing Guidelines have been published aiming 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. Even though there have been no changes to substantive Acts or regulations, this is being viewed as the biggest change in Health and Safety legislation since the ‘Health and Safety at Work Act’ was introduced in 1974.
The Guidelines have been produced by the independent Sentencing Council for England and Wales, and came into force in English and Welsh courts on 1st February 2016. For full details the guidelines are available at www.sentencingcouncil.org.uk.
Drivers for change
Health and Safety and Food Safety offences currently attract significantly smaller sentences from courts compared to other legal areas such as Environment and Finance. When Health and Safety prosecutions often deal with fatalities, the lower level of fine made the sentences appear inadequate.
There has also been a lack of comprehensive guidance for the courts, leading to a lack of consistency across the board. The Sentencing Council has covered the full sentencing process and gone even further by providing case studies for various industry and offence type.
Bigger fines?
While it is not anticipated that there will be bigger fines in every case, some offenders can expect to receive significantly higher penalties, particularly large organisations committing serious offences.
Furthermore the fines will be brought in line with Environmental and Financial offences, with large companies (those with a turnover in excess of £50 million) facing up to a £10 million fine for fatal Health and Safety offences and up to £20 million if convicted of Corporate Manslaughter. Similar fines will be in place for Food Safety offences.
Culpability for the offence
The Guidelines follow a process which allows the court to arrive at a consistent, correct penalty. The first part of this is establishing the category of offence, done by establishing the level of Culpability and the Harm category. Culpability levels are:
- Low – Minor failing, significant attempts to address the risk.
- Medium – Systems in place to reduce risk but not sufficiently implemented or adhered to.
- High – Offender fell far short of standards required. Serious and/or systemic failure in the organisation.
- Very High – Deliberate breach or flagrant disregard for the law.
Once culpability is decided, the Harm Category must be identified. This is split into two parts: the seriousness of harm risked and the likelihood of the harm arising. Anyone trained in risk assessment will recognise these terms as being part of the assessment process and demonstrate a move towards risk-based sentencing.
The table below illustrates Harm categories:
| Seriousness of harm risked | |||
| Level A Death Physical/mental impairment requiring care for life Significantly reduced life expectancy | Level B Physical or mental impairment which has substantial long term effect Progressive, permanent or irreversible condition | Level C All other cases not falling into A or B
| |
| High likelihood of harm | Harm category 1 | Harm category 2 | Harm category 3 |
| Medium likelihood of harm | Harm category 2 | Harm category 3 | Harm category 4 |
| Low likelihood of harm | Harm category 3 | Harm category 4 | Harm category 4 |
Risk-based sentencing (rather than harm-based in the previous Guidelines) is a major change and brings sentencing in line with the risk management aims of the Health and Safety at Work etc. Act 1974.
To illustrate, imagine that someone falls off a ladder and suffers a minor break to their leg. Under the previous Guidelines a sentence would be imposed that reflects the fact that it was a relatively minor injury. However under the new Guidelines the sentence would be based on the ‘seriousness of harm risked’ and not the actual injury; because falls from height carry a strong risk of death or permanent disability this example may attract a higher level of fine and/or custodial sentence, particularly if the organisation was shown to be in the High or Very High culpability range.
Turnover
Penalties will be primarily applied based on the organisations turnover, not profit (although this may be taken into account in the decision). There are four main categories or organisation:
- Micro (turnover no more than £2m, can be fined up to £450k)
- Small (turnover between £2m and £10m, can be fined up to £1.6m)
- Medium (turnover between £10m and £50m, can be fined up to £4m)
- Large (turnover in excess of £50m, can be fined up to £10m)
Because the Guidelines aim to bring Health and Safety offences in line with Finance and Environmental penalties, we could actually see fines of up to £100m for very large organisations whose turnover ‘very greatly’ exceeds the threshold for large organisations.
Aggravating factors
Custodial sentences for individuals of 12 or 18 months will be automatic for certain levels of offence, especially with Harm categories 1 and 2 and High/Very High Culpability. Custody may also be applied for lower harm categories where the court identifies ‘aggravating factors’ such as:
- Previous convictions
- Whether the offence was committed while on bail
- Cost-cutting at the expense of Health and Safety
- Deliberate concealment of illegal activity
- Breach of court order
- Obstruction of justice
- Poor Health and Safety record
- Falsification of documentation
- Deliberate failure to obtain or comply with licences in order to avoid official scrutiny
- Targeting vulnerable victims
These factors may also influence fines imposed on the organisation.
Minimising the risk
So how can bosses minimise the risks to their organisation and to themselves? As with all business issues, the first thing is to ensure that good standards come from the top. Following the HSE and Institute of Directors guidance document Leading health and safety at Work (INDG417 available on the HSE website) will go a long way to dispensing your responsibilities.
You also need to fully understand your Health and Safety and Food Safety risks: auditing and other checks by a competent person are essential. Making sure that you have a suitable and sufficient management system is important but what may be even more so is making sure that it is being properly utilised.
The overall Health and Safety culture of the organisation will be examined in the case of a Corporate Manslaughter prosecution so evidence of good practice such as consultation with employees, proactive risk assessment, identifying accident trends and keeping your documentation up to date will help.
The Health and Safety Policy Statement (also known as a ‘Statement of Intent’) and Roles and Responsibilities allocated to the management team are important to demonstrate top-level buy-in but you should ensure that any commitments made in the documents are being followed through otherwise they could be used against you.
From February 2016, simply ignoring Health and Safety problems that ultimately result in an injury will be treated even more harshly than before so if you feel that you are not in control it is vital to seek help, either internally from a competent person or from an expert organisation.