As most health and safety practitioners are aware, the new sentencing guidelines for Corporate Manslaughter, health and safety and food hygiene offences, came into force on 1 February 2016.
In the lead up to the new guidelines coming into force, courts already appeared to have the guidelines in mind, when sentencing companies for breaches of health and safety legislation. For example, Balfour Beatty and UK Power Networks were both fined £1 million for fatal injuries under the Health and Safety at Work etc. Act 1974 (HSWA) in late January 2016.
Balfour Beatty was sentenced at Canterbury Crown Court on 25 January 2016, for two offences under HSWA. Interestingly, Balfour Beatty Civil Engineering was a dormant company, however the Balfour Beatty Group had consolidated accounts, therefore reporting £4.2 billion in revenue in the UK in 2014. Under the new guidelines it may well have been classified a ‘very large’ company and although the £1 million fine in this case was large for two health and safety offences, under the current guidelines Balfour Beatty may have faced a fine in excess of £10 million.
In Chelmsford Crown Court on 26 January 2016, UK Power Networks was also fined £1 million for failing to exercise its duty under s.3(1) of HSWA when a runner was fatally electrocuted by a live wire straddling a footpath. UK Power Networks was criticised for their failure to immediately de-energise the line remotely and “that had there been different culture and different procedures, it would have been likely that the line would have been switched off immediately.” UK Power Networks would also have likely been considered to be a ’very large’ company under the new guidelines, reporting turnover in excess of £1 billion in 2014.
These two fines were perhaps not shocking, given that for fatal injuries previous guidance had stated that fines would be “in the hundreds of thousands and even in the millions”. What may be more surprising however, was the sentencing of CRO Ports in relation to a non-fatal injury which occurred to a man’s arm while he was securing mooring ropes. The company was fined £1.8 million on 21 January at Basildon Crown Court, which represented 23.3% of the company’s pre-tax profit on a turnover of £25.1 million.
After 1 February 2016
The first Corporate Manslaughter case was sentenced under the new guidelines on 5 February 2016, in the case of Sherwood Rise Ltd, a micro-organisation (with turnover of up to £2 million). Under the new guidelines, a starting point of a fine of between £300,000 – £450,000 is recommended (depending on the level of harm and culpability of the offence for that size of company). The company was fined £300,000 which is at the lowest end of the range, reflective of the fact that a guilty plea was entered at an early stage. It may also be reflective of the fact that the director responsible for the day to day operation of the care home pleaded guilty to a charge of gross negligence manslaughter and was sentenced to a three year custodial sentence.
The courts have been busy with various health and safety prosecutions since 1 February 2016, a summary of which is set out below:
- Clean Earth Energy Ltd (a medium sized company – turnover £20m) – fined £20,000 for one offence under the Working at Height Regulations 2005 involving a serious injury at Bodmin Magistrates’ Court.
- Amey Community Limited (large/very large – turnover £232m) – fined £20,000 for one offence under the Construction (Design and Management) Regulations 2007 for failing to prevent exposure to asbestos in a school by Northampton Magistrates’ Court.
- Falcon Crane Hire Ltd (a medium sized company – turnover £22.17m) – fined £750,000 at Southwark Crown Court for two offences under HSWA for an incident which resulted in two fatalities. The company was fined £350,000 for each offence. As this case involved two fatalities it was most likely found to be a Harm Category 1 and a Medium –High culpability offence.
- Syngenta Ltd (very large company – turnover £422m) – fined £200,000 by Leeds Crown Court for two regulatory breaches under the Control of Major Accident Hazards Regulations 1999 and Provision and Use of Work Equipment Regulations 1998. There were no injuries and the case concerned chemical leaks.
- ConocoPhillips (very large – turnover £5.8bn) – fined £3m by Lincoln Crown Court for three breaches of Offshore Installations (prevention of Fire and Explosion, and Emergency Response) Regulation 1995 in a non-injury case. The hearing commenced prior to the 1 February 2016, however it was sentenced on 25 February 2016. The fine was discounted from £5m to take account of early guilty pleas and other mitigation.
From these cases, we can see that a fairly mixed approach has been taken in the first six weeks under the new sentencing guidelines, with Magistrates’ Courts yet to impose any significantly increased fines. In the case of Amey Community Limited, it would appear the company could have potentially faced a much larger fine particularly given the size of its turnover, however the Magistrates’ only imposed a £20,000 fine.
The Crown Courts do appear to be beginning to stretch their “sentencing wings”, particularly in the case of ConocoPhillips, who were ordered to pay a £3 million fine for a non- fatal incident. This goes far beyond the previous guidelines for health and safety offences which would have seen a similar incident perhaps attracting a fine in the hundreds of thousands of pounds.