Breaches of health and safety legislation are triable either way, thus can be heard in the Magistrates or Crown Court. The maximum sentence for organisations is an unlimited fine, and for individuals convicted of such offence they too can face an unlimited fine, a term of imprisonment up to two years or both.
The Sentencing Council introduced new sentencing guidelines for health and safety offences, corporate manslaughter and food safety and hygiene offences which came into force on 1 February 2016 (“Guidelines”). Since implementation there has been a revolutionary impact on the levels of fines, especially for breaches of health and safety legislation, when compared to those that have historically been handed down for simple health and safety breaches, and certainly those committed by corporate entities.
Before the introduction of the Guidelines, the only assistance available to courts sentencing health and safety cases was a set of guidelines in 2010 for sentencing cases involving a death.
These specifically prohibited the courts from fixing a fine with reference to the turnover or profit of a company, but also gave little by way of practical assistance on how a fine should be set.
The Guidelines direct and require courts, on conviction, to consider the sentencing of an offender by way of a step-by-step approach, primarily requiring examination and assessment of the following:
- Level of culpability
- Level of actual harm and/ or likelihood of harm
- Level of turnover (organisations) or financial means (individual)
The Guidelines put an offence into context, taking account each of the above factors and identifies an appropriate level to reflect the scale within each category. In view of a number of earlier Court of Appeal judgments expressing a similar perspective, the Guidelines require a detailed assessment of an organisation’s turnover (not profit) to determine the starting point for a fine that is intended. The sentencing Court will then address the usual sentencing steps such as any further aggravating or mitigating factors, reduction for plea, totality principle and alike to increase or decrease the level of fine/ sentence ultimately imposed.
The herald of a new era in sentencing health and safety breaches reinforces the need to be proactive when approaching such matters. With an increased focus on the ‘risk of harm’ as presented within the Guidelines, it is inevitable that many organisations will by virtue fall into the higher categories of seriousness, thus seeing the level of fines imposed significantly increase. However, the resulting impact will invariably be offenders contesting such matters and lengthier sentencing hearings that perhaps involve the calling of expert evidence not previously relied upon.
Shelley Frost, Executive Director of Policy at The Institue of Occupational Safety and Health, commenting on the increased penalties said:
“Health and safety offences can ruin lives, devastate families and inhibit precious talent. While you cannot put a value on human life, the level of fines now being handed out recognises society’s disapproval of serious corporate failures that lead to injury, illness and death. It reflects a desire to deter others from making the same errors and takes significant steps forward in aligning penalties for these offences with other regulatory breaches in the UK.”
The new guidelines are beginning to provide a measure of the impact that corporate manslaughter and health and safety offences can have on people and the economy. The levels of these fines is also starting to reflect the economic cost to the UK of workplace illness or injury, which is reported to have been £14.1 billion in 2016.
Health and Safety Executive data on prosecutions show a large annual increase in the total amount of fines awarded, rising from £38.8 million in 2015/16 to £69.9 million in 2016/17, which is the first full year where the new sentencing guidelines have been in effect.
As set out above, a key feature of the Guidelines when determining the level of fine imposed, is the turnover of the offending entity. Inevitably this has caused such organisations to see an increase in the sentence pronounced. For example in the period of 2014/ 2015, prior to the introduction of the Guidelines, the single largest fine was £750,000 and five cases were at or above £500,000. In contrast for 2016/17, the single largest fine was £5 million and a total of 38 cases received fines over £500,000.
Given the significant increase in sentences handed down, it is important that both organisations and individuals within those organisations are managing health and safety efficiently in order to avoid investigation and or prosecutions. Thus, ensuring there is no reputational damage and the business remains viable.
If you require advice on anything covered in this article or any matter relating to health and safety then please do not hesitate to contact our specialist team on 01603 610911.
Note: the content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.