Sentencing guidelines



New guidelines for health and safety offences, corporate manslaughter, and food safety and hygiene offences came into force on 1 February 2016. The Sentencing Council said its Health and safety offences, corporate manslaughter and food safety and hygiene offences definitive guideline would 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 taken 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. The guideline also makes clear that: “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.”



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 (again 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 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 guideline falls short of union demands for tougher sentencing and holding directors accountable for health and safety failings. It does not, for example, deal with “phoenix” companies, which are wound up prior to conviction or sentencing only to reappear under a different guise. However, unions generally welcomed the guideline as a step in the right direction. TUC head of health and safety Hugh Robertson said it represents a huge change in attitude to health and safety offences, and the courts are increasingly handing down fines exceeding a million pounds.



HSE enforcement statistics for 2016-17 show a large annual increase in the total amount of fines handed down for health and safety offences, rising from £38.8 million in 2015-16 to £69.9 million in 2016-17, the first full year under the new guidelines.


Fines are now related to the turnover of organisations and the HSE says as a result, large organisations convicted of health and safety offences are receiving larger fines than those handed down before the guidelines came into force. In 2016-17, the single largest fine was £5 million and 38 cases received fines over £500,000. In comparison in 2014-15, the last full year before the guidelines were introduced, the single largest fine was £750,000 and just five cases were at or above £500,000. 


By the time the guidelines had been in force for two years on 1 February 2018, the courts had handed down more than 20 fines of £1 million pounds or more to companies and other organisations convicted of breaching health and safety law. Although these fines appear high and have generated a lot of publicity, Open University professor Steve Tombs says the key figure to look at is what they represent in terms of turnover.