The definitive guidelines for health and safety, corporate manslaughter and food safety offences have been published in their final form and will be in force from 1 February 2016. This article discusses the implications of the Guidelines on health and safety and corporate manslaughter offences.
The Sentencing Council published a consultation on guidelines for health and safety offences, corporate manslaughter and food safety and hygiene offences (the Guidelines) on 13 November 2014, as outlined in previous articles.
The final Guidelines have been published as of 3 November 2015. They will apply to all sentences from 1 February 2016 onwards; regardless of the date on which the offence took place.
The Guidelines will result in significantly higher fines being imposed on companies, particularly larger companies. Fines will be linked to the turnover of each offending company. The Guidelines provide starting points and ranges for each size of organisation, for health and safety offences, corporate manslaughter and food safety and hygiene offences. This article discusses the implications of the Guidelines in their published form on health and safety and corporate manslaughter offences.
Size of organisation
The different organisation sizes are defined as follows:
- Micro: Turnover or equivalent of not more than £2 million
- Small: Turnover or equivalent of between £2 million and £10 million
- Medium: Turnover or equivalent of between £10 million and £50 million
- Large: Turnover or equivalent of £50 million and over
- Very large: Where an organisation’s turnover or equivalent very greatly exceeds the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence
Health and Safety offences
When determining the seriousness of the offence, the court will take into account both the level of culpability and the level of harm.
First, the court will consider culpability, which ranges from very high (involving a deliberate breach of or flagrant disregard for the law) to low (where the offender did not fall far short of the appropriate standard). The court will then consider harm, or risk of harm, which is comprised of two factors, being:
- Seriousness of harm – split into levels A, B and C
- Likelihood of harm – split into high, medium or low
Harm is then categorised from levels one to four, with one being the highest.
The above is part of a nine step test which the court will employ in calculating the appropriate fine for an offending company.
Bearing in mind that there will have been a fatality and corporate failings at a high level in order to prove the offence; here the court will consider the seriousness of the offence by asking itself the following questions:
- How foreseeable was serious injury?
- How far standard of the appropriate standard did the offender fall?
- How common is this kind of breach in this organisation?
- Was there more than one death, or a high risk of further deaths, or serious personal injury in addition to death?
Depending on the answers to the above, the court will then categorise the offence as either category A if it is found to be more serious, or category B if it is found to be less serious considering the circumstances.
Events which were outside of the offending company’s control and may have contributed to the death will be considered in relation to arguments for reducing seriousness, but it is not expected that actions of victims will be taken into account.
Differences from draft Guidelines to final version
The fine tariffs remain the same from the draft to the final version of the Guidelines. A point worth noting is the changes made to step four of the nine step approach to be taken in calculating fines for health and safety offences.
Step four considers the wider impacts of a potential fine within the organisation or on innocent third parties. In addition to the impact on the offender’s ability to improve conditions in the organisation to comply with the law and the impact of the fine on employment of staff, service users, customers and the local economy (but not shareholders or directors); the final Guidelines also state that the impairment of the offender’s ability to make restitution to victims should also be considered at this stage.
Commercial effects of the new Guidelines
Fines imposed for health and safety offences, corporate manslaughter and food safety and hygiene offences will increase drastically once the new Guidelines are in force As a company’s turnover will be one of the main factor in determining fines, it is likely that larger companies will be in danger of receiving fines in the millions or even tens of millions of pounds for serious offences.
The new, markedly more formulaic approach to determining the ability to pay a fine is likely to result in more Newton hearings (mini-trials to determine a key issue, such as the basis on which a defendant should be sentenced after a guilty plea) and the involvement of forensic accountants.
Many companies which are currently subject to an ongoing prosecution and intending to plead guilty may well wish to do all they can to ensure they are sentenced before the new guidelines come into effect, in order to avoid paying a significantly larger fine.
Author: Alex IvesonThis information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.