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The definitive health and safety/food safety sentencing guidelines

On 13 November 2014 the Sentencing Council published a consultation on Health and safety offences, corporate manslaughter and food safety and hygiene offences guidelines. These were published on 3 November 2015 and represent the biggest shake up to health and safety offences since the 1970s, bringing fines on a par with regulators such as the Competition and Markets Authority.

On 13 November 2014 the Sentencing Council (“the Council”) published a consultation on Health and safety offences, corporate manslaughter and food safety and hygiene offences guidelines (“the Guidelines”). These were published on 3 November 2015 and represent the biggest shake up to health and safety offences since the 1970s, bringing fines on a par with regulators such as the Competition and Markets Authority.

The Guidelines link fines to the turnover of the offenders for offences relating to health and safety, corporate manslaughter and food safety and hygiene. The Guidelines provide starting points and ranges for fines which will result in significantly increased fines, especially for large companies.

The Guidelines define large organisations as those which have a turnover or equivalent of £50 million and over. In relation to health and safety offences and corporate manslaughter, the Guidelines expressly state that where a defendant organisation’s turnover or equivalent very greatly exceeds the £50 million threshold, it may be necessary to move outside the suggested range to achieve a proportionate sentence.

Whilst the Guidelines would not cover Scotland, they are likely to be taken into consideration by Scottish courts especially in the case of health and safety as the legislation is UK wide.

The Guidelines will apply to all sentences awarded from the 1 February 2016 regardless of the date of offence.

Health and safety offences

The Guidelines apply to the main health and safety offences for companies and individuals under the Health and Safety at Work etc. Act 1974 (“HSWA”), as well as the large number of health and safety regulations covered by HSWA. The scope of the Guidelines covers organisations as well individuals in varying capacities including directors and employees.

In order to redress the balance between small companies and larger ones, the Council has determined that fines should not be reduced from the levels currently being imposed on smaller organisations, but that fines on large organisations should be larger to reflect the substantial means of these offenders and send a message to management and shareholders. This means that larger companies, especially those which turn over more than £50 million, can expect to see an increase in penalties handed out by the courts.

Fines for health and safety offences for large organisations (turnover or equivalent: £50 million and over) – ranges and starting points:

Article 1

 

Corporate manslaughter

The Guidelines cover corporate manslaughter and replace the existing sentencing guidance to ensure there is consistency with health and safety offences. The Council has split corporate manslaughter into two categories – more serious (category A) and less serious (category B).

Fines for corporate manslaughter for large organisations (turnover or equivalent: £50 million and over) – ranges and starting points:

Article 2

 

* To determine whether an offence is more or less serious the court should consider the following questions and form a view:

  • How foreseeable was serious injury?
  • How far short 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?

Food safety and hygiene offences

Previously, there is very little specific guidance for sentencing food safety offences and often in such cases the courts extract applicable principles from sentencing in cases involving health and safety.

Whilst the Council does not intend that its Guidance will mean an increase in fines on larger organisations committing lower culpability offences, it anticipates that it will result in higher starting points for more serious offences committed by larger organisations. Therefore, companies which turn over more than £50 million are at risk of paying far higher fines than have been awarded historically, should they be charged with food safety or hygiene offences. This means that it is more important than ever that due diligence systems are robust.

In food safety and hygiene cases, the accused is often charged with a number of offences. The Guidelines reinforce the need for the court to consider whether the total sentence is just and proportionate.

Fines for food safety and food hygiene offences for large organisations (turnover or equivalent: £50 million and over) – ranges and starting points:

Article 3

 

* Harm categories:

1 - Serious adverse effect(s) on human health:

Acute and/or chronic condition; and/or widespread impact.

2 - Adverse effect on human health (not amounting to category 1):

High risk of an adverse effect on human health – including where supply was to groups that are particularly vulnerable to health issues.

Regulator and/or legitimate industry substantially undermined by offender’s activities.

Relevant authorities unable to trace products in order to investigate risks to health, or are otherwise inhibited in identifying or addressing risks to health.

3 - Medium or low risk of an adverse human health effect:

Public misled about the specific food consumed, but little or no risk of actual adverse health effect.

Conclusion

The Guidelines focus on offenders’ financial circumstances means that:

  • The starting point for offences will be higher;
  • Fines will be substantially higher amounting to millions of pounds; and
  • For companies with turnover greater than £50 million the fines may be in the tens of millions.

A much more formulaic approach to ability to pay will be undertaken leading to Newton hearings and the involvement of forensic accounts.

As a result fines for safety offences will be brought more closely into line with other regulatory penalties such as competition law.

Source: Sentencing Council - Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline, 3 November 2015

This 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.

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Hilary Ross

Executive Partner (London) - Head of Retail, Food & Hospitality

Recognised by The Lawyer as one of the UK’s Top 100 lawyers, I advise clients on compliance and challenges across the EU in relation to products, systems and safety.