Tougher sentences proposed for health and safety, food safety offences

Large organisations convicted of the most serious health and safety and food safety offences could face significantly increased sentences, under proposals put out for consultation by the Sentencing Guidelines Council.

The proposals are contained in draft guidelines for sentencers dealing with corporate manslaughter, health and safety and food safety and hygiene offences.

The council said it was introducing the guidelines “due to a lack of comprehensive guidance for sentencers in relation to these offences”.

While there is a guideline covering corporate manslaughter and fatal health and safety offences, there is no specific guidance on sentencing food safety offences or non-fatal health and safety offences. Existing guidance also only covers offences committed by organisations rather than individuals.

“This marks the first time that guidelines will cover all the most commonly sentenced health and safety offences and food safety offences,” the council said.

The guidelines have been drawn up because of the lack of familiarity among sentencers with how to deal with these offences, which are not sentenced as frequently as other criminal offences.

The council pointed out that the consequences of health and safety offences could hugely vary; “they may pose the risk of minor harm or lead to multiple fatalities caused by deliberate breach of the law”.

Food offences were similarly wide-ranging, it said. “They could involve very poor hygiene standards in kitchens, or failure to manage processes involving the preparation of food properly.”

The guidance seeks to address difficult issues such as those relating to the risk of harm, identifying appropriate fine levels for organisations, or fining offenders that are charitable or public bodies.

The review also reflects concerns that sentences imposed for these offences were too low. Under the proposals, fines for corporate manslaughter could go as high as £20m for companies with a £50m+ annual turnover, while for fatal health and safety offences they could reach up to £10m.

The council argued that increased sentences would ensure that they were proportionate to the seriousness of the offence while, as required by law, taking account of the financial circumstances of the offender.

“It is proposed that an offending organisation’s means will initially be based on its turnover as this is a clear indicator that can be easily assessed and is less susceptible to manipulation than other accounting methods,” it said.

“However, the guideline also requires the court to consider the organisation’s wider financial circumstances to ensure that fines can be properly and fairly assessed.”

The council suggested that fines should be big enough to have a real economic impact “which will bring home to the offending organisation the importance of achieving a safe environment for those affected by its activities”.

It is unlikely, though, that sentencing levels in relation to lower level offences will change. “This is because they are seen as already proportionate, and because fines must be based on the financial circumstances of the offender,” the council argued.

Sentencing Council member Michael Caplan QC said: “We want to ensure that these crimes don’t pay. They can have extremely serious consequences and businesses that put people at risk by flouting their responsibilities are undercutting those that maintain proper standards and do their best to keep people safe.

“Our proposals will help ensure a consistent approach to sentencing, allowing fair and proportionate sentences across the board, with some of the most serious offenders facing tougher penalties.”

Gerard Forlin QC, a health and safety and corporate manslaughter specialist at Cornerstone Barristers, said: “This is a game-changing moment for organisations and individuals. The 14-week consultation period is very short and includes the Christmas period.

“Even the mere talk of fines of up to £20m (or even greater in the largest organisations) in the most serious type of corporate manslaughter cases after trial, will trigger much debate.”

He added: “If this becomes law, then it is likely that either early guilty pleas on a basis or, perhaps more likely, contested trials will become the norm.

“It affects a whole spectrum of regulatory offences and must be taken extremely seriously.” 

The consultation runs until 18 February 2015. The consultation paper and draft guidelines can be found here.

The consultation paper said: "While the term 'health and safety' is sometimes – and often incorrectly – associated with trivial matters, true health and safety breaches can have devastating consequences, up to and including death."

According to the Health & Safety Executive’s provisional statistics for 2013/14, some 133 workers were fatally injured in the workplace. Seventy members of the public were meanwhile fatally injured in accidents connected to work (excluding railway related incidents).