New Sentencing Guidelines for Health & Safety Offences
New guidelines prepared by the Sentencing Council in relation to Health and Safety and Food Safety offences come into force on 1 February 2016.
The guidelines are intended “to ensure a consistent, fair and proportionate approach to sentencing organisations or individuals convicted” of such offences.
The Courts will apply the new guidelines when delivering sentence in all matters dealt with after 1 February 2016 even though the offence to which the prosecution relates may have occurred prior to that date.
The approach that the Courts are now required to take involves an initial assessment of the seriousness of the offence for which the Defendant organisation or individual has been convicted. This involves consideration of the risk of harm and the culpability of the offender.
Next, the Court will have regard to the guidelines in determining the appropriate starting point and category range for the offence based on the turnover of the Defendant when considering the financial penalty which should be imposed. The guidelines set out five categories of organisation, beginning with those businesses where turnover does not exceed £2 million extending to the largest concerns where turnover is well in excess of £50 million.
The Courts will then consider whether there are any aggravating or mitigating features. For example, if there is evidence that the offence has been committed wilfully and for commercial gain, these will be treated as aggravating features whereas in cases where the offence was committed inadvertently, health and safety procedures are generally effective and in place and where there have been no prior convictions then these will be treated as mitigating factors.
Due regard will also be had to the degree of cooperation shown by the Defendant in relation to the investigation and credit will be given for early guilty pleas.
The guidelines also require the Courts to consider whether the proposed fine both reflects the seriousness of the offence and takes into account the financial circumstances of the offender.
The guidance is clear in its instruction to the judiciary: the fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation.
In cases involving individuals, the guidance requires that the fine must reflect the seriousness of the offence and reflect the extent to which the offender fell below the required standard. Fines should meet the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence.
The intention behind these guidelines is clear. Both organisations and individuals which fail to ensure that their health and safety procedures are robust and who commit an offence are likely to suffer both reputational and financial harm when they come before the courts. As the guidance makes plain, whether “the fine will have the effect of putting the offender out of business will be relevant; in some bad cases this may be an acceptable consequence.”
If you need any further information, please contact Mark Quigley.