Changes in Sentencing Guidelines for Health & Safety Offences

Under the proposed sentencing guidelines large businesses found guilty of the most serious health and safety offences could face significantly increased sentences, for example, fines for corporate manslaughter could be as high as £20 million for a business with a turnover in excess of £50 million, whilst for fatal health and safety offences they could reach up to £10 million.  The Sentencing Council’s proposals were under consultation until18 February 2015. Following that review it is anticipated that the guidelines will come into effect at the beginning of 2016.

It is anticipated that the number of prosecutions for health and safety offences will increase significantly along with level of fines.

Aim of proposed sentencing guidelines

The aim of the guidelines is to promote a consistent approach to sentencing for health and safety, corporate manslaughter and food offences and to ensure all sentences are proportionate to the offence committed and in relation to other offences.

Proposed sentencing structure

It is proposed the courts will adopt the following structure when sentencing businesses and individuals.

Step 1: determining the offence category

The court should consider the harm and culpability factors to identify the seriousness of the offence.  The court should ask:

  • How foreseeable was serious injury? The more foreseeable it was, the graver would be the offence.
  • Did the defendant fail to comply with advice from regulators, authorities or employees?
  • Did the defendant fail to comply with industry standards?
  • How adequate was training, supervision or reporting arrangements?
  • How widespread was non-compliance?
  • Was there more than one death or a high risk of further deaths, or serious personal injury in addition to death?

 

Step 2: starting point and category range

The court should obtain the business’s financial turnover to determine whether the organisation is: micro, small, medium, large or very large.  The court will then identify a starting point and range for the appropriate level of fine. The court will also consider aggravating and mitigating factors to make adjustments from the starting point.  The proposed starting points and ranges are provided in appendix 1

Step 3: is the proposed fine proportionate to the defendant’s means?

The court should consider whether the suggested fine is proportionate to the means of the defendant.

Step 4: other factors that warrant adjusting the proposed fine

The court should consider any wider impacts the proposed fine may have on innocent third parties, e.g. employees and service users, where necessary the fine should be adjusted to avoid unjustifiable wider consequences.

Steps 5 – 9:

Are standard steps in Sentencing Council guidelines, including factors to be considered for the reduction of a penalty, e.g. early guilty plea and previous good record.

The proposals are serious for businesses and they should be alert to the fact that tougher sentencing is definitely on its way.  The new sentencing landscape will align the sentencing for serious health and safety offences with a defendant’s financial means, culpability and likelihood of harm resulting in increased sentences and fines.  The Council has said 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.”

Sentencing in relation to low-level offences is unlikely to change as they are viewed as being proportionate.  It is unlikely that objections to the proposals will alter the Council’s proposed approach to sentencing.  At present the proposals remain in draft form and do not propose to change existing legislation.  The Council expects to publish the definitive sentencing guidelines for these offences by the end of 2015, with increased sentences and fines taking effect from early 2016.  In the interim, businesses should concentrate on implementing adequate health and safety measures that both protect their workers and the public from injury, and their business from exposure to financial and custodial penalties.

 

Level of Culpability shall fall under four categories

Very High

Deliberate breach of or flagrant disregard for the law

High

Offender fell far short of the appropriate standard: For example by failing to put in place measures that are recognised standards in the industry ignoring concerns raised by employees or others failing to make appropriate changes following prior incident(s) exposing risks to health and safety allowing breaches to subsist over a long period of time

Evidence of serious, systematic failings within the organization to address risks to health and safety

Medium

Offender fell short of the appropriate standard in a manner that falls between descriptions in ‘high’ and ‘low’ culpability categories

Low

Offender did not fall far short of appropriate standard; for example, because

  • Significant efforts were made to address the risk although they were inadequate on this occasion
  • There was no prior event or warning indicating a risk to health and safety

 

For individuals level of culpability will fall under the following categories:

Deliberate

Where the offender intentionally breached or flagrantly disregarded the law

Reckless

Actual foresight of, or willful blindness to, risk of offending but risk nevertheless taken

Negligent

Offence committed through act or omission, which a person exercising reasonable care would not commit

Low

Offence committed with little fault, for example, because:

 

  • Significant efforts were made to address the risk although they were inadequate on this occasion
  • There was no prior event or warning indicating a risk to health and safety failings were minor and not systemic

Aggravating and mitigating factors

Statutory Aggravating Factor

Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction

Other Aggravating Factors Include;

  • Cost-cutting at the expense of safety
  • Deliberate concealment of illegal nature of activity
  • Breach of any court order
  • Obstruction of justice
  • Poor health and safety record
  • Falsification of documentation or licenses
  • Deliberate failure to obtain or comply with relevant licenses in order to avoid scrutiny by authorities

Mitigating Factors

  • No previous convictions or no relevant/recent convictions
  • Evidence of steps taken to remedy problem
  • High level of co-operation with the investigation, beyond that which will always be expected
  • Good health and safety record
  • Effective health and safety procedures in place
  • Self-reporting, co-operation and acceptance of responsibility

 

Corporate Manslaughter

When considering levels of sentencing the courts should take the following into account.

  • How foreseeable was serious injury?

The more foreseeable it was the graver usually would be the offence. Failure to heed warnings or advice from the authorities, employees or others or to respond appropriately to “near misses” arising in similar circumstances may be factors indicating greater foreseeability of serious injury.

  • How far short of the appropriate standard did the offender fall?

Where an offender falls far short of the appropriate standard, the level of culpability is likely to be high. Lack of adherence to recognised standards in the industry or the inadequacy of training, supervision and reporting arrangements may be relevant factors to consider.

  • How common is this kind of breach in this organisation?

How widespread was the non-compliance? Was it isolated in extent or, for example, indicative of a systematic departure from good practice across the offender’s operations or representative of systemic failings? Widespread non-compliance is likely to indicate a more serious offence.

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

The greater the number of deaths, very serious personal injuries or people put at high risk of death, the more serious the offence.

Fines

Large – Turnover more than £50 million
Offence Category Starting Point Category Range
A (More serious offences) £7,500,000 £4,800,000 – £20,000,000
B £5,000,000 £3,000,000 – £12,500,000
Medium – Turnover £10 – £50 million
Offence Category Starting Point Category Range
A (More serious offences) £3,000,000 £1,800,000 – £7,500,000
B £2,000,000 £1,200,000 – £5,000,000
Small Turnover £2 to £10 million
Offence Category Starting Point Category Range
A (More serious offences) £800,000 £540,000 – £2,800,000
B £540,000 £350,000 – £2,000,000
Micro – Turnover up to £2 million
Offence Category Starting Point Category Range
A (More serious offences) £450,000 £270,000 – £800,000
B £300,000 £180,000 – £540,000

 

Appendix 1

Health & Safety Offences Fines

 

Micro – Turnover not more than £2 million

Starting Point Category Range
Very high culpability
Harm category 1 £250,000 £150,000-£450,000
Harm category 2 £100,000 £50,000-£200,000
Harm category 3 £50,000 £25,000-£100,000
Harm category 4 £24,000 £12,000-£50,000
High Culpability
Harm category 1 £160,000 £100,000-£250,000
Harm category 2 £54,000 £30,000-£110,000
Harm category 3 £30,000 £12,000-£54,000
Harm category 4 £12,000 £5,000-£21,000
Medium Culpability
Harm category 1 £100,000 £60,000-£160,000
Harm category 2 £30,000 £14,000-£70,000
Harm category 3 £14,000 £6,000-£25,000
Harm category 4 £6,000 £2,000-£12,000
Low Culpability
Harm category 1 £30,000 £18,000-£60,000
Harm category 2 £5,000 £1,000-£20,000
Harm category 3 £1,000 £200-£7,000
Harm category 4 £200 £50-£2,000

 

Small – Turnover between £2Million – £10 Million

Starting Point Category Range
Very high culpability
Harm category 1 £450,000 £300,000-£1,600,000
Harm category 2 £200,000 100,000-£800,000
Harm category 3 £100,000 £55,000-£400,000
Harm category 4 £50,000 £20,000-£190,000
High Culpability
Harm category 1 £250,000 £170,000-£1,000,000
Harm category 2 £100,000 £50,000-£450,000
Harm category 3 £54,000 £25,000-£210,000
Harm category 4 £24,000 £12,000-£100,000
Medium Culpability
Harm category 1 £160,000 £100,000-£600,000
Harm category 2 £54,000 £25,000-£230,000
Harm category 3 £24,000 £12,000-£100,000
Harm category 4 £12,000 £4,000-£50,000
Low Culpability
Harm category 1 £45,000 £25,000-£130,000
Harm category 2 £9,000 £3,000-£40,000
Harm category 3 £3,000 £700-£14,000
Harm category 4 £700 £100-£5,000

 

 

 

Medium – Turnover between £10Million – £50 Million

Starting Point Category Range
Very high culpability
Harm category 1 £1,600,000 £1,000,000-£4,000,000
Harm category 2 £800,000 £400,000-£2,000,000
Harm category 3 £400,000 £180,000-£1,000,000
Harm category 4 £190,000 £90,000-£500,000
High Culpability
Harm category 1 £950,000 £600,000-£2,500,000
Harm category 2 £450,000 £220,000-£1,200,000
Harm category 3 £210,000 £100,000-£550,000
Harm category 4 £100,000 £50,000-£250,000
Medium Culpability
Harm category 1 £540,000 £300,000-£1.300,000
Harm category 2 £240,000 £10,000-£600,000
Harm category 3 £100,000 £50,000-£300,000
Harm category 4 £50,000 £20,000-£530,000
Low Culpability
Harm category 1 £130,000 £75,000-£300,000
Harm category 2 £40,000 £14,000-£100,000
Harm category 3 £14,000 £3,000-£60,000
Harm category 4 £3,000 £1,000-£10,000

 

Large – Turnover £50Million and Over

Starting Point Category Range
Very high culpability
Harm category 1 £4,000,000 £2,600,000-£10,000,000
Harm category 2 £2,000,000 £1,000,000-£5,250,000
Harm category 3 £1,000,000 £500,000-£2,700,000
Harm category 4 £500,000 £240,000-£1,300,000
High Culpability
Harm category 1 £2,400,000 £1,500,000-£6,000,000
Harm category 2 £1,100,000 £550,000-£2,900,000
Harm category 3 £540,000 £250,000-£1,450,000
Harm category 4 £240,000 £120,000-£700,000
Medium Culpability
Harm category 1 £1,300,000 £800,000-£3,250,000
Harm category 2 £600,000 £300,000-£1,500,000
Harm category 3 £300,000 £130,000-£750,000
Harm category 4 £130,000 £50,000-£350,000
Low Culpability
Harm category 1 £300,000 £180,000-£700,000
Harm category 2 £100,000 £35,000-£250,000
Harm category 3 £35,000 £10,000-£140,000
Harm category 4 £10,000 £3,000-£60,000 


Penalties for Individual

Starting Point Category Range
Deliberate
Harm category 1 18 months custody 1-2 year’s custody
Harm category 2 1 year’s custody 26 weeks – 18 months custody
Harm category 3 26 weeks custody Band F fine or high level community order – 1 year’s custody
Harm category 4 Band F fine Band E Fine-26 week’s custody
Reckless
Harm category 1 1 year’s custody 26 weeks – 18 months custody
Harm category 2 26 weeks custody Band F fine or high level community order – 1 year’s custody
Harm category 3 Band F fine Band E Fine-26 week’s custody
Harm category 4 Band E fine Band D Fine – Band E Fine
Negligent
Harm category 1 £1,300,000 Band F fine or high level community order – 1 year’s custody
Harm category 2 Band F fine Band E Fine-26 week’s custody
Harm category 3 Band E fine Band E Fine-26 week’s custody
Harm category 4 Band D fine Band C – Band D fine
Low Culpability
Harm category 1 Band F fine Band E Fine-26 week’s custody
Harm category 2 Band D fine Band C – Band D fine
Harm category 3 Band C fine Band B – Band C Fine
Harm category 4 Band A fine Conditional discharge – Band A fine


FINE BANDS

Fine Band Starting Point Category Range
Band A 50% of relevant weekly income

 

25–75% of relevant weekly income

 

Band B 100% of relevant weekly income

 

75–125% of relevant weekly income

 

Band C 150% of relevant weekly income

 

125–175% of relevant weekly income

 

Band D 250% of relevant weekly income

 

200–300% of relevant weekly income

 

Band E 400% of relevant weekly income

 

300–500% of relevant weekly income

 

Band F 600% of relevant weekly income

 

500–700% of relevant weekly income

 

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