New sentencing guidelines


New Sentencing Council guidelines for health and safety offences, corporate manslaughter and food safety and hygiene offences came into force on 1 February 2016. The Sentencing Council has said that its new Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline will increase penalties for serious offending and is intended to ensure that fines are fair and proportionate to the seriousness of the offence and the means of offenders.


The guideline sets out a range of provisional sentences for different types of offence, for both organisations and individuals (aged 18 and over). Aggravating and mitigating factors must be taking into account to finalise the sentence. A guilty plea can result in a reduction of the sentence by around a third.


The guideline requires courts to decide, in each case, on the level of culpability involved. This might range from a very high level of culpability, such as a deliberate breach or flagrant disregard for the law (“Category A” offences), to a low level of culpability, where an offender made significant efforts to address the risk but these were inadequate on this particular occasion, where there was nothing to indicate a risk to health and safety, and the failings were minor and resulted in an isolated incident (“Category B” offences).


Courts also need to consider the seriousness of the harm and the likelihood of it arising, how many people were at risk and whether the offence was a significant cause of the actual harm. There are tables in the guidance, setting out starting points for categories of offence, for organisations of different sizes.


For organisations with a turnover of £50 million and over which commit serious health and safety offences where there is a very high level of culpability and a high risk of harm, the starting point for the fine is £4 million and the category range is £2.6 million to £10 million. “Where an organisation’s turnover or equivalent very greatly exceeds the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence”, says the guidance.


In the case of corporate manslaughter, by definition the harm and culpability will be very serious and every case will involve death and corporate fault at a high level. To determine the seriousness of the offence, the court will assess factors including:


• Whether serious injury was foreseeable;


• How far short of the appropriate standard the offender fell;


• How common this kind of breach in this organisation is;


• Whether there was more than one death, or a high risk of further deaths, or serious personal injury in addition to death.


The answers to these questions will determine whether the offence is Category A (a high level of harm or culpability within the context of the offence) or Category B (a lower level of culpability).


For large organisations with a turnover exceeding £50 million, the starting point for fines for a Category A offence is £7.5 million, and the range is £4.8 million to £20 million (with the potential for a higher fine where turnover greatly exceeds the threshold).


Aggravating factors include previous convictions, cost-cutting at the expense of safety, deliberately hiding illegal activity, a poor health and safety record, falsifying documents or licenses and targeting or exploiting vulnerable victims.


Mitigating factors include no previous or recent relevant convictions, evidence of steps taken to remedy the problem, a high level of co-operation with the investigation and a good health and safety record.


The guideline also sets out a range of penalties for individuals who have breached health and safety law, including prison sentences of up to two years for offences involving a very high level of culpability and high risk of harm. It also says that the court must consider whether to disqualify an offender from being a company director for a maximum of 15 years (in the Crown Court) or five years (in the magistrates’ court).


The guidance falls short of unions’ demands for tougher sentencing and holding directors accountable for health and safety failings. For example rail and maritime RMT union recently described even a record £1.125 million fine imposed on oil giant Total for North Sea safety failures as “nothing more than a slap on the wrist” that will be absorbed within the company’s petty cash. Even so, unions have generally welcomed the new guidelines as a step in the right direction. TUC head of health and safety Hugh Robertson, for example, said they “represent a huge change in attitude to health and safety offences”.


There is still concern, however, that the guidelines do not deal with “Phoenix” companies, which are wound up prior to conviction or sentencing only to reappear under a different guise later. Construction union UCATT has called on the government to outlaw this practice by allowing the HSE to apply for a freezing order from the court to prevent a company going into administration following the death of a worker.


The guideline can be found on the Sentencing Council website (https://www.sentencingcouncil.org.uk/wp-content/uploads/HS-offences-definitive-guideline-FINAL-web.pdf).