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New Sentencing Guidelines for Corporate Manslaughter, Health and Safety and Food and Hygiene offences

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In force on 1 February 2016

The long-awaited definitive guideline for corporate manslaughter, health and safety and food safety offences was published on 3 November 2015.

The guideline comes into force on the 1 February 2016 and will apply to all those sentenced on or after that date, irrespective of when the offence was committed.

The Sentencing Council has confirmed that the guideline will mean higher penalties for some offenders, "particularly large organisations committing serious offences – such as when an organisation is convicted of deliberately breaking the law and creating a high risk of death or serious injury".

However, the Sentencing Council does not anticipate that fines will be significantly higher in the majority of cases. This, of course, remains to be seen.

Health and Safety and Food and Hygiene Offences

The guideline distinguishes between offences committed by organisations and individuals and sets out the steps for the courts to follow when determining sentence:


Step 1

An assessment of culpability, i.e. the extent to which the offender failed to meet the necessary standards


Step 2

Assessment of the level of harm, which will involve two considerations:

  • Risk of harm created by the offence

  • Likelihood of that harm arising

Step 3

Consideration of turnover (organisations) or income (individual defendants). Each case will then fit into a grid to determine the appropriate starting point and range of fine.


Step 4

Consideration of any mitigating and aggravating features will then move the potential fine from the starting point, either upwards or downwards within a range, (or if appropriate, outside the range) to determine the appropriate fine.

Typical aggravating factors include: previous convictions, cost-cutting at the expense of safety, poor health and safety record, targeting vulnerable victims.

Typical mitigating factors include: no previous convictions, high level of co-operation, effective procedures in place, steps taken voluntarily to remedy problems.

Corporate Manslaughter

The guideline for corporate manslaughter recognises that the levels of culpability and harm are very serious. Therefore, a set of questions is posed to enable the sentencing judges to categorise the offences as follows:


(a) How foreseeable was serious injury?

(b) How far short of the appropriate standard did the offender fall?

(c) How common is this kind of breach in this organisation?

(d) Was there more than one death, or a high risk of further deaths, or serious personal injury in addition to death?

What does this mean for me and my organisation?

Organisations

Fines under the new guideline are directly linked to an organisation's turnover defined as follows: Micro (£2million), Small (£2-£10million), Medium (£10-£50million), Large (over £50million) and Very Large (no guidance).

The fact that there has been no guidance for organisations with a turnover that exceeds the "Large" bracket creates the potential for fines in the tens of millions. To put it into perspective, the guideline suggests fines of up to £20million for "Large" companies for corporate manslaughter and £10million for health and safety offences.

Organisations will have to submit detailed financial information and turnover will be one of the financial considerations where turnover is high but profit margins low. In some cases where the prosecution can demonstrate that the resources of a parent company are available and should properly be taken into account, its turnover may also be taken into account when calculating the fine for a subsidiary.

Individuals

Of particular note in relation to individuals is the guidance that for health and safety offences committed by those who show a level of "reckless" or "deliberate" culpability, the penalty should be a custodial sentence unless the harm category is low.

This is significant because it could increase the likelihood of custodial sentences for directors and officers convicted of offences under Section 37 of the Health and Safety at Work Act 1974 and employees under Section 7 of the Act.

The penalties set out in the guideline represent the starting point before any aggravating or mitigating factors are considered and are given for each category of offence.


Costs

As a result of the likely rise in fines for organisations as well as increased exposure to custodial sentences for individuals, defendants may be more prepared to contest the charges against them and proceed to trial. The trial costs are likely to be more proportionate than was previously the case. It may also be beneficial to the defendant, if convicted, for the judge to hear all of the evidence to enable him to place the offence in its appropriate category.

Additionally, even following a guilty plea, we may see lengthier contested sentencing hearings, with the need for expert evidence including forensic accountants dealing with the finances and accounts of an individual / organisation.



Are you ready?

We have seen an increase in prosecutions for health and safety offences, with the 16th organisation convicted of corporate manslaughter on 1 December 2015.

To reduce the risk of accidents, lost time and lost production as well as the risk of prosecution and the prospect of larger fines, the following wider risk management issues should be revisited:


  • Risk assessments, method statements and safe systems of work;

  • Focus on corporate governance and incident management procedures; and

  • Ensure individuals are appropriately trained and understand their duties.

If you are not already doing so, health and safety should be pushed to the top of your agenda.



How can we help?

DAC Beachcroft's specialist regulatory lawyers are on hand to assist you with any queries you may have in relation any health and safety, food hygiene or corporate manslaughter offences.

For more information please contact Sally Roff, Partner and Head of National SHE Team on 07921 890 829 or sroff@dacbeachcroft.com