The “Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guidelines” for courts in England and Wales have been published today, to come into force on 1 February 2016. As expected, the guidelines confirm that a dramatic increase in fines for such offences must be anticipated.
The guidelines will apply to all individual offenders aged 18 and older and to organisations who are sentenced on or after 1 February 2016, regardless of the date of the relevant offence.
The guidelines aim “to ensure a consistent, fair and proportionate approach to sentencing organisations or individuals convicted of corporate manslaughter, health and safety and food safety and hygiene offences.” A copy of the guidelines, as well as the response to the consultation process can be found here.
Today’s guidelines do not stand alone in confirming there is to be a significant increase in sentencing levels, in the regulatory sphere. There have been a number of landmark developments recently, not only in relation to health, safety and food offences but also environment breaches. In February 2014, the “Environmental Offences Definitive Guideline” was published and came into force in England and Wales in July 2014, introducing a similar tariff based system for sentencing of certain environment law offences, resulting in significantly higher fines. The Sentencing Council then began the development of today’s published guidelines and the consultation process followed, from 13 November 2014 – 18 February 2015.
In the meantime, the courts have demonstrated their support for the approach suggested in the guidelines, in recent health, safety and environment cases. Two judgements in particular are both considered and referred to by the Sentencing Council in drafting the guidelines published today. We reported earlier this year on the case of R v Thames Water Utilities Limited  EWCA Crim 960 where the Court of Appeal ruled on an appeal in relation to sentencing for “very large” organisations, something which is not defined in the Environmental Guidelines. The Court said in respect of the approach to sentencing for serious incidents affecting very large organisations: “This may well result in a fine equal to a substantial percentage, up, to 100%, of the company’s pre-tax net profit for the year in question (or an average if there is more than one year involved), even if this results in fines in excess of £100 million.” We also reported on the earlier appealed cases of R v Sellafield and Network Rail  EWCA Crim 49 where there was a similar message from the Court of Appeal: i.e. large companies with high turnover should expect large fines to ensure that they take compliance seriously.
In light of such developments, today’s publication of the guidelines, as well as the response to the consultation, has been eagerly anticipated. The consultation response document comments on similarities with considerations made in the environmental guidelines, together with the importance of ensuring fines mark the seriousness of offences. The Sentencing Council states it has also had regard to ensuring that sentences are consistent with and proportionate to those for environment law offences, because similar issues exist in relation to the sentencing of organisations.
It is said that the general approach outlined in the consultation has been maintained in the final version, with a number of amendments made “to improve the efficacy of the guidelines.” In particular, the Sentencing Council’s approach, that the use of turnover or equivalent (in the case of non-commercial organisations) to identify starting points for determining means and level of fines is to be maintained.
Very careful consideration must be given to these guidelines, for organisations being investigated or facing prosecution. It is clear that both the first instance and appellate courts have demonstrated their support for the approach being taken. The Sentencing Council has stated an intention to monitor the impact of the guidelines, commenting that it “recognises that higher fines will not be popular with those who may have to pay them” but it regards the application of the principles as fair and fundamental to sentencing. Meanwhile, although they will apply exclusively to England and Wales, a similar approach is expected in Scotland, following the establishment of the Scottish sentencing council on 19 October 2015.