Sentencing Council issues new guidelines for health and safety cases

The Sentencing Council has published new sentencing guidelines for corporate manslaughter, health and safety and food safety and hygiene cases, with directions to increase the penalties for large organisations convicted of more serious offences.

The council said the higher penalties were being introduced because in the past, some offenders had not received the fines that properly reflected the crimes they had committed.

The new guidelines, which can be viewed here and will come into force in the courts on 1 February 2016, set out sentencing ranges so that the extent of the offender’s culpability can be taken into account.”

For organisations convicted of an offence, the guidelines use turnover to identify the starting point. However, the guidelines then require the court to “step back”, review and adjust the initial fine if necessary, the Council said.

“It must take into account any additional relevant financial information, such as the profit margin of the organisation, the potential impact on employees, or potential impact on the organisation’s ability to improve conditions or make restitution to victims. This means sentences will always be tailored to the offender’s specific circumstances. Fines may move up or down or outside the ranges entirely as a result of these additional mandatory steps,” it added.

The Council noted that while addressing remedial action with offenders was the responsibility of the Health and Safety Executive rather than the courts, the guideline did provide for remedial orders to be made by the court in addition to or instead of punishment in cases where they may be appropriate.

The guidelines also include a range of mitigating factors which allow for voluntary positive action to remedy a failure on the part of offenders to be reflected in sentences.

The Council said: “The publication of the guidelines ensures that for the first time, there will be comprehensive sentencing guidelines covering the most commonly sentenced health and safety offences and food safety offences in England and Wales.

“Until now, there has been limited guidance for judges and magistrates in dealing with what can be complex and serious offences that do not come before the courts as frequently as some other criminal offences.”

It said that although fines would be higher in certain cases, it was not anticipated that there would be higher fines across the board, or that they would be significantly higher in the majority of cases to those currently imposed.

Helen Devery, national head of regulatory at law firm BLM, said: “The new guidelines published today by The Sentencing Council have been highly anticipated and set out a dramatic increase fines for all levels of health and safety convictions.

“Most notably there will now be a stepped approach to sentencing following a comprehensive assessment of the incident including culpability, harm, size of the offending organisation, potential financial implications following determination of the fine and whether the fine will have an impact on third parties, i.e. employees.”

Devery added that it was interesting that the Council had also stated that it would take a new approach to managing concerns over fines deemed too low in the past and ‘it will consider the financial position of the offending company and may have to, where appropriate, move outside the relevant fine band…’.

“Offenders can expect to see a higher starting point and range of sentencing under the new guidelines, particularly for those involving high culpability and harm,” she predicted.

“The starting point for micro-organisations for the most serious offences is £250,000 rising to a maximum of £400,000. Large companies can expect a new minimum fine of £4m-£10m for serious offences.

“The impact of these guidelines will be closely monitored and we are likely to witness much more scrutiny around these cases. Businesses need to be prepared to manage the impact of these increases if that is indeed possible and to work harder than ever to avoid incidents and their impact on their people, productivity and profits.”