The Sentencing Council has published today its long-awaited definitive guideline for corporate manslaughter, health and safety and food safety offences. The guideline will come into force on 1 February 2016 and will apply to all offenders sentenced on or after that date, irrespective of the date on which an offence was committed.
In an accompanying press release the Sentencing Council has affirmed that the guideline will mean higher penalties for some offenders "particularly large organisations committing serious offences – such as when an organisation is convicted of deliberately breaking the law and creating a high risk of death or serious injury." However, they do not anticipate that fines will be significantly higher in the majority of cases. That of course remains to be seen. The press release and guideline can be found by clicking here.
To anyone who considered the draft guideline attached to the Sentencing Council's consultation paper (published November 2014 – click here to see our previous alert) it will be clear that few changes have made it into the newly published version. The approach to sentencing set out in the draft (based on categories of culpability and harm, and a range of fines) remains the same with a few minor amendments as follows:
Medium culpability - In the draft, 'medium' culpability was vaguely defined as when the "Level of offender's systemic failure falls between the descriptions in 'high' and 'low' culpability categories". For organisations committing health and safety or food safety offences, the new guideline replaces this with "Systems were in place but these were not sufficiently adhered to or implemented". This may reflect the perceived difficulty in defining 'systemic' elements of an offence.
Low culpability - Once again, the word 'systemic' has been removed and replaced with "failings which were minor and occurred as an isolated incident".
A new aggravating feature of "targeting vulnerable victims" is included for health and safety offences committed by organisations and individuals. This brings the aggravating features in line with those included for corporate manslaughter for which "exploitation of vulnerable victims" has been preserved in the definitive guideline from the draft.
Mitigation - The word 'voluntarily' has been added in respect of steps taken by an offender to remedy a problem as a mitigating feature for health and safety and food safety offences.
This could be an important change if an offender cannot rely in mitigation upon a remedial step taken in compliance with an improvement notice.
This means it will be vital to ensure a dialogue with the regulator immediately following an accident in the hope that remedial measures can be voluntarily agreed without the need for recorded enforcement action.
However, the HSE ordinarily rely upon enforcement action as the basis for its fee for intervention charges; organisations might have to decide whether to accept the validity of an HSE Notice of Contravention if this means an improvement notice can be avoided.
Interestingly, 'voluntarily' is not included in the same mitigating factor for corporate manslaughter. However, this is unlikely to be an omission which an offender could place any reliance on during the sentencing exercise.
Compensation and ancillary orders - the guideline includes new wording emphasising that if an organisation has not taken remedial steps by the date of sentencing it will have been deprived of "significant mitigation". This highlights the importance which will be placed upon evidence of remediation during the sentencing exercise.
The new guidelines also make it clear that the payment of compensation will take priority over prosecution costs where the means of an offender are limited.
In the section on sentencing for food safety offences the harm categories have been altered to move "medium risk of an adverse effect on individuals" up one category. This may increase the number of offences included in the higher penalty ranges.
The only area of the new guideline that offers limited comfort to potential defendants relates to the provision of company accounts to the Court. In the draft, it was suggested that a failure to provide recent accounts on request could "properly lead to the conclusion that the company can pay an appropriate fine." The new guideline clarifies that, in fact, that failure will entitle the Court only to draw reasonable inferences as to the offender's means, in all the circumstances of the case, "which may include the inference that the offender can pay a fine". In practice this is unlikely to be of real assistance unless there are very good reasons why accounts cannot be provided, such as the reorganisation of a corporate structure.
What remains is an absence of guidance about the way in which 'very large' organisations will be dealt with by the courts. Recently, large fines have been awarded against organisations which would fit within the 'very large' category (Hugo Boss, Lindsey Oil Refinery), but these were well below the new ranges in the guideline. However, the guideline provides the potential for fines exceeding several tens of millions of pounds and it is likely to be only a matter of time before we see them awarded.
Fire safety remains the elephant in room and the Sentencing Council has not explained why those offences were excluded from the consultation and the guideline. However, this is the first time that definitive guidelines have been provided for all categories of health and safety and food safety offences. The clarity that is (for the most part) provided in the guideline is a welcome development, even if it could lead to more combative sentencing hearings or more trials because the stakes have been raised so much higher for large organisations.