13 June 2018
The Sentencing Council (‘SC’) is consulting until 18 February 2015 on a new draft guideline for sentencing health & safety, corporate manslaughter, food safety and hygiene offences. Wider-ranging and more comprehensive than previous guidance, the proposed new guideline will cover offending by individuals as well as organisations. It includes all breaches of sections 2, 3 and 7 of the Health and Safety at Work Act 1974 (‘HSWA’) and contraventions of health and safety regulations, not just those offences resulting in a death.
The SC is proposing fines of up to £20 million for large organisations which commit serious offences such as corporate manslaughter. As in the SC’s Definitive Guideline on Environmental Offences published in July this year, the fines would be at a higher level than previously, and be calculated by reference to an organisation’s turnover. This approach is consistent with the Court of Appeal’s comments in R v Sellafield and Network Rail  that the level of fine imposed on a company should reflect the company’s financial circumstances and be sufficiently large to bring home the seriousness of offences to directors and professional shareholders. The new emphasis on higher and proportionate fines reflects the thinking behind section 85 of the Legal Aid Sentencing and Punishment of Offenders Act 2012, which once implemented will give Magistrates’ Courts the power to impose unlimited fines for certain offences.
The SC is also considering for the first time when prison sentences should be imposed on individuals convicted of health & safety offences. The SC is proposing that individuals convicted of deliberate and reckless conduct which creates a risk of serious harm should receive a prison sentence, but it is undecided on whether and when imprisonment might be appropriate for individuals who are merely negligent, but where the negligence results in death or creates a risk of serious harm.
What this means for you
If adopted in its current form, the guideline will lead to higher fines for regulatory offences including health and safety breaches. The potential level of fines could be reduced, however, as the guidance changes in response to the consultation. Although it may lead to greater consistency in the sentencing of some regulatory offences, by setting a starting point tied to a company’s turnover in all cases the new guideline runs the risk limiting judicial discretion to impose a sentence which is proportionate to the offence.
The new guidance will be extremely influential on sentencing in health and safety cases, so those likely to be affected in any way should take this opportunity to express their views on the proposals using a link on the SC website.