UK Sentencing Council publishes health and safety offences and corporate manslaughter guidelines
09 November 2015
On November 3 the Sentencing Council published its Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline. It was issued following a public consultation to ensure a consistent and proportionate approach to sentencing and will come into effect on February 1, 2016.
The definitive Guidelines do not differ significantly to those put out for consultation earlier this year. The key changes for health and safety offences for both organisations and individuals, as well as corporate manslaughter, are as follows:
*Inclusion of targeting vulnerable victims as an aggravating feature.
*Greater emphasis placed on the importance of remediation as a means of mitigation.
*The measures of culpability for individuals for health and safety offences have been changed to mirror those of organisations.
*Greater clarity that all organisations when sentenced for corporate manslaughter or health and safety offences will have consideration given to the wider impact of any fine on the organisation or innocent third parties.
The Guidelines are based on the concept that ‘culpability’ and ‘harm’ are used to determine the level of fine, cross-referenced against the size of the Defendant organisation.
The measure of ‘culpability’ varies from ‘low’, where failings are minor and not systemic, to ‘very high’, where there has been a deliberate breach or flagrant disregard for the law. The level of ‘harm’ is based upon the risk of harm created by the offence, which is they exacerbated if actual harm has occurred.
Once the ‘culpability’ and ‘harm’ categories are established, the turnover of the organisation will be used to allocate a particular sentencing matrix. There are different matrices depending on the size of the organisation. Once the matrix has been used to determine the fine range, it will then be for the Court to engage in the normal sentencing exercise and follow the following process:
*Consider any mitigating and aggravating features of the case, as listed in the Guidelines;
*Ensure that the fine is proportionate to the means of the offender;
*Consider other factors that may warrant adjustment of the fine, such as the impact of any fine on the local economy; and
*Apply a reduction for a guilty plea (where appropriate).
Companies – Corporate manslaughter
As regards corporate manslaughter sentencing, there is no need to determine the level of ‘harm’ as all prosecutions will follow a fatality. ‘Culpability’ levels are also reduced into two categories: ‘serious’ and ‘more serious’.
The proposed fines are significant and much larger than the majority of those imposed for corporate manslaughter offences since April 2008. The figures for ‘large’ organisations are significantly heavier:
The sentencing exercise then mirrors that to be followed for health and safety offences, above.
The British Safety Council says the new guidelines are a strong argument for focusing on prevention and good governance.
Neal Stone, Deputy Chief Executive of the British Safety Council, said: “This guideline has been eagerly awaited since the consultation closed at the beginning of the year. We believe that this definitive guideline is clear in presenting the business case for good health and safety. It will help to concentrate minds with the argument that it is better to prevent injury and ill health than face the costs associated with getting it wrong.
“The British Safety Council fully supports the principle underlying criminal sanctions set out in the guidelines, that is, penalties should reflect the culpability of organisations and individuals found to have been in breach and the harm caused.
“However, our concern relates to the relatively low level of awareness among businesses of these new guidelines and the possible outcomes in relation to sentencing, and specifically in relation to individuals potentially receiving custodial sentences. In this respect, ensuring that executive and senior managers are sighted and aware of these liabilities is an important element not only in relation to good governance but also in relation to the opportunity to gain understanding of what good health and safety means to your organisation and the people working within it.
"The real test is whether the significant increase in penalties will contribute to greater compliance and a reduction in workplace injuries and ill health occurrences. Our role is to assist organisations to achieve compliance and this will be our focus.”