The Sentencing Council, an independent body charged with developing sentencing guidelines for Courts, launched a consultation on 13 November 2014 to engage public opinion on the creation of new guidelines for sentencing in health and safety, food safety and hygiene and corporate manslaughter offences. The Consultation aims to provide consistency and proportionality across all sentencing guidelines for these offences. It also aims to ensure that fines will reflect the seriousness of the offence, and take into account the financial circumstances of the offender, as well as the extent to which the offender fell below the required standard. In short, although the proposals are likely to lead to a more consistent approach to sentencing, they are also likely to lead to an increase in the level of fines for larger organisations.
The Sentencing Council's decision to launch this consultation was prompted and shaped by several recent developments:
- The 2014 Court of Appeal decision in R v Sellafield and Network Rail  highlighted the issue of fines in the context of health and safety and environmental offences. The judgment emphasised the importance of finding the right level of fine, taking into consideration the financial circumstances of the offender, while still maintaining the appropriate sentencing aims.
- The Council published guidelines in February 2014 for environmental safety offences, an area broadly related to health and safety, and food safety and hygiene. These guidelines put in place new rules which would result in higher fines for environmental offenders than for offenders of health and safety and food safety and hygiene. The Council is therefore seeking to improve the consistency and proportionality of sentencing across all similar offences.
- The Legal Aid, Sentencing and Punishment of Offenders Act 2012, although not yet in force, will give magistrates the power to impose unlimited fines for particular offences, including for offences relating to health and safety and food safety and hygiene. Once magistrates have these new sentencing powers, the Council intends that the new Sentencing Guidelines will assist the magistrates in concurrently applying fair and proportionate sentences.
Nature of the Proposals
The Council has determined that in areas of health and safety and food safety and hygiene there is very little guidance on sentencing and therefore there is inconsistency in how factors have been weighted and applied in reaching sentencing decisions across the country. The Council found that fines imposed on organisations for health and safety offences appeared too low in relation to the level of harm caused, and that there have been relatively few prosecutions for corporate manslaughter.
The approach taken by the Council is that fines must reflect the seriousness of the offence, and take into account the financial circumstances of the offender, as well as the extent to which the offender fell below the required standard. The fines should also meet the aims of punishment and deterrence in a fair and proportionate way: a penalty must remove any economic gain derived from the offence, to ensure it is not cheaper to offend again than to take the necessary precautions. For organisations the fine should be sufficiently substantial to have a real economic impact, in order to ensure compliance.
In light of these objectives, the proposal in the consultation is that for each of the offences the Court will be required to consider the culpability of the offender and the harm caused, then to assess the appropriate level of the fine, primarily by reference to turnover.
The culpability and harm
● Health and Safety offences: the starting point for health and safety offences under these proposals is to consider: 1) the risk of harm created by the offence, including the seriousness of the harm and the likelihood of that harm arising; and 2) whether the offence exposed a significant number of people to the risk of harm and whether the offence was a significant cause of actual harm.
● Corporate Manslaughter: the Court will consider the extent of culpability and harm for corporate manslaughter by reference to a range of factors, including: the foreseeability of the injury; how far short of the appropriate standard the offender fell; whether the non-compliance was widespread; and the number of injuries/fatalities.
● Food safety and hygiene offences: under these proposals, the Court is required to consider the extent to which the offender has deliberately breached the law, or to what extent they have fallen short of acceptable standards.
The level of the fine
The Council has suggested that the turnover of an organisation is used as the starting point for assessing the level of a fine, and then the Court will consider aggravating and mitigating factors to make adjustments. The Court is also required to examine the financial circumstances of the offender in the round, including taking into account profit margins relative to turnover, any economic benefit derived from the offence, and whether the fine would put the offender out of business (although it indicated that in some cases this may be an acceptable consequence).
Practitioners in this area are likely to welcome the Council's attempts to unify sentencing across health and safety, food safety and hygiene and corporate manslaughter. The current lack of clarity around sentencing in these areas ought to be greatly improved by the draft guidelines, giving clients more certainty over likely penalties for offences. However, the proposed changes are likely to result in higher levels of fines for large organisations, given the extent to which the Court will be required to take into account the financial circumstances of the offender in setting the fine.
The Consultation is open until 18 February 2015 and can be accessed here