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Fines for corporate manslaughter and health & safety offences look set to increase dramatically

From 1 February 2016 a new Definitive Guideline on Health and Safety offences, Corporate Manslaughter and Food Safety and Hygiene offences will take…

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.

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 equally has not been improved by the fact that there are relatively few health and safety cases that appear before the Criminal Courts as compared to traditional cases (e.g. assault, ABH, GBH, rape, murder etc).  As a result of the consequent infrequency with which magistrates and judges sentence health and safety cases, there can also 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.”

Health and safety offences

In determining sentence, the Court must initially have regard to (a) culpability and (b) harm.  There are four categories of culpability:

  1. Low - minor failings occurred as an isolated incident, or the offender did not fall far short of the appropriate standard;
  2. Medium – systems, for example, were in place but these were not sufficiently adhered to or implemented;
  3. 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
  4. Very High - deliberate breach or flagrant disregard for the law.

The court must 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).

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.

Corporate manslaughter

The new Definitive Guideline will replace the previous 2010 Definitive Guideline; from February 2015 the sentencing range will be £180,000 - £20 million fine. The previous sentencing guidelines stated that ‘the appropriate fine will seldom be less than £500,000 and may be measured in millions of pounds’.

The implementation of these new guidelines now provides businesses with even more reason to ensure that health and safety becomes a priority. To assist businesses with compliance, Weightmans LLP has recently launched a new ‘Boardroom Training Service’ which provides bespoke training for both experienced directors and senior managers who need to maintain their awareness of legal developments, and also for those who are newly-appointed and need to get up-to-speed with their new responsibilities. The Boardroom Training Service is designed to be entirely flexible in terms of both its content and the format of its delivery, and covers a wide variety of key issues, including:

  • Directors’ statutory duties;
  • Health & safety law;
  • Environmental incidents.

In addition it also covers wider issues which might affect your business including:

  • Pension law and dealings with pension trustees;
  • Employment law;
  • Data protection and information security;
  • Business crime;
  • Competition law;
  • Procurement law and tenders;
  • Product Liability;
  • Avoiding litigation (identifying the most common causes of disputes in commercial agreements);
  • Banking and Finance law, and what to expect when financing a project;
  • Taxation issues;
  • Estate planning for business owners and senior executives.      

You may choose any combination of topics (whether or not listed above), based upon your particular needs. The training can be delivered in bite-sized chunks as part of Boardroom/senior management away day sessions or, alternatively, can be delivered in half or full day sessions.  For further information please contact:

Crispin Kenyon, Partner on 020 7822 7151 or email crispin.kenyon@weightmans.com.