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 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 (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 new guidance 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.



Within days of the new sentencing guideline coming into force, fuel giant ConocoPhillips (UK) was handed down a £3 million fine after being found guilty of putting employees’ lives “at extreme risk of death or serious injury”.


The Institution of Occupational Safety and Health (IOSH) published an analysis of health and safety penalty fines, obtained by the law firm Osborne Clark LLP using a Freedom of Information Act (FoI) request, in its report Health and safety sentencing guidelines one year on. It found that the guidelines have had a huge impact on the level of fines being handed down by the courts.


The report showed that 19 companies received fines of £1 million or more, compared with just three in 2015 and none in 2014. The largest fine was £5 million, two and a half times the size of the largest fine in 2015 and almost 10 times larger than the largest fine in 2014. This was handed down to Merlin Attractions Operations in September 2016 following an incident on the Smiler ride at the Alton Towers Theme Park in June 2015. This left several people with life-changing injuries, including two young women who suffered leg amputations when their carriage collided with a stationary carriage on the same track. The highest 20 fines in 2016 totaled £38.58 million – higher than the £38.3 million total for the 660 successful HSE prosecutions in 2015-16.