The Sentencing Council’s consultation on ‘Health and safety offences, corporate manslaughter and food safety and hygiene offences guidelines’ will seek to address the lack of specific guidance in these sectors currently available to the Courts. It will also bring sentencing practice in line with offenders’ financial means, culpability and the likelihood of harm in such a way that will bring about substantial increases in sentences with fines.
The proposed guidance is that fines for large companies committing the most serious health and safety offences could reach up to £10m and up to £20m in respect of corporate manslaughter.
The consultation closes on 18 February 2015. Whilst some changes will be made, it is unlikely that the categorisations used to determine the range of fines or the parameters will be significantly altered.
Why the change?
Existing guidance on sentencing such offences covers predominantly corporate manslaughter and health and safety offences causing death committed by organisations as contained in the Sentencing Guidelines Council’s 2010 guidelines.
Also there is a distinct lack of guidance for offences not causing death or committed by individuals as opposed to organisations. Such offences rely on what little guidance is contained in the Magistrates’ Court Sentencing Guidelines and authorities from the Court of Appeal.
The new guidance is aimed at achieving a more consistent approach. This inconsistency in part stems from the relatively few health and safety and food offences heard. 2013 saw only 420 sentences passed for health and safety offences and 280 for food safety offences.
There has also been criticism towards the sentences passed. These are seen as not fulfilling the purpose of sentencing (which includes to punish, deter and protect members of the public), because fines are too low in relation to the harm caused, the culpability and the means of the offender.
What is changing?
The most significant change is the direct link between the level of fine and a defendant’s turnover.
Companies will be categorised as micro (a turnover of less than £2m), small (a turnover of £2m to £10m), medium (a turnover of £10m to £50m) and large (a turnover of above £50m).
The guidelines will use a matrix system, categorising the offence and the defendant to produce a starting point for the fine on convictions. The more serious the harm caused or the potential to be caused and the defendant’s culpability the higher the range. This range is then applied to the size of the defendant company to produce the starting point for the fine.
Whilst there remains a level of discretion to consider the wider circumstances and implications of the fine, Courts will be much more closely tied to a set range.
The result of the consultation is likely to see a substantial increase in potential fines and custodial sentences so as to ‘bring home to both management and shareholders the need to comply with legislation and achieve a safe environment for workers and members of the public’.
What does it mean right now?
Nothing is changing for now. Further the consultation does not propose to change any existing legislation or nature of the offences. Its remit is to produce a set of guidelines which will be applied in assessing the appropriate sentence for offenders. The consultation in 2005 following the introduction of the Corporate Manslaughter Act proposed fines linked to turnover which were not adopted. It may be that with sufficient persuasive objection this time the consultation responses will change the Sentencing Council’s current approach.
The consultation will last 14 weeks and closes on 18 February 2015. Responses to the consultation can be submitted at consult.justice.gov.uk/sentencing-council/health-andsafety-offences-guidelines.
What will it mean?
A significant increase in the level of fines will focus companies on their potential exposure for health and safety breaches. A good safety system must be a priority both to protect those affected by its activities and to guard against significant financial penalties.