“The sentencing guidelines are very prescriptive and only in very exceptional circumstances can judges go off script,” said director of Turnstone Law, Simon Joyston-Bechal, of the health and safety sentencing guidelines introduced in February.
They provided a route map for the judge to decide if culpability was low, medium or high, he said, while the judge would also refer to the harm category matrix and the table for the turnover of organisations.
So what were the implications of the system? In January, immediately prior to the introduction of the guidelines, four cases had received £1m plus fines for “very straightforward breaches not even resulting in fatalities” said senior associate at Pinsent Masons LLP, Kizzy Augustin.
Since the introduction, Travis Perkins had received a £2m fine after a customer was fatally run over and Balfour Beatty were fined £2.6m after an employee died when a trench collapsed on him.
“What we’re starting to see is an increase in fines, particularly where organisations have repeat offences,” she said.
Not only was there an increase in the amount that companies were being fined, however – the number of people being imprisoned was also going up.
“The higher turnover you have, the higher the fine. But there’s still a bit of disparity and bedding in for these guidelines. I think we’ll just have to wait and see how they play out over the next few years.”
The HSE had no role in terms of the size of fines, said its legal advisor Peter McNaught.
“The sentencing guidelines are issued by the sentencing council – the same as for other offences – to give judges guidance in how to impose sentences consistently. The courts must follow them, although there are circumstances where the court could decide it’s not in their best interests to do so.”
HSE fully supported the guidelines however, said Peter. “In sentencing we have a legal duty to assist the court in coming to the appropriate sentence. What HSE does is to help them determine risk of harm, culpability and so on. It’s up to the court to reject that, and we don’t get a penny from the fines that are imposed.”
There were some “unusual things” in the guidelines, however, argued Simon Joyston-Bechal. “While they seem eminently sensible, there are elements that I think could take us to some perverse results.”
One was that judges could be tempted to look at failings that had been going on for some time as automatically meaning high culpability.
“We find it difficult to believe that an individual or a company would deliberately and flagrantly flout the law, but how do you prove that?” added Kizzy Augustin.
“You’d think when you designed this, you’d want to ensure an even spread of categories,” stated Simon Joyston-Bechal. “But I think the wording will suck many more cases up into the top categories. Now it’s about ‘harm risk’.
“So if there’s an unguarded edge to this stage it doesn’t matter if I’ve fallen over and broken my neck, or just nearly fallen over – for the vast majority of cases that come before prosecutors you could say ‘there could have been’ serious harm. So in my view, even thought it looks sensible, I don’t think these things have been taken into account.”
It could be argued that this was ‘completely right’, he acknowledged – if two organisations had the same risks, why shouldn’t the punishments be the same?
“From HSE’s perspective, providing an incentive to manage risk properly is important,” stressed Peter McNaught. “Rather than just waiting until a death has happened.”
For organisations with a turnover above £50m it was possible that the judge would find it necessary to move outside of the specified ranges, explained Simon Joyston-Bechal.
“We don’t know how far, although the Court of Appeal has said there’s no reason why they wouldn’t allow £100m. I think the system inflates these figures more than was intended.”
Cases could also “jump up a category” because they had exposed more than one person to risk, he said, and there was a similar process for individuals as well as companies.
“So on the face of it all of this is sensible and impossible to argue against, but there are some inflammatory factors that will suck you up towards the high end of the table. My expectation is we’re going to see more prison sentences for health and safety offences than we’d normally expect to see.”
It was unfair from a defence point of view that these inflammatory factors meant “you could be beaten over the head twice,” said Kizzy Augustin.
However, the new guidelines didn’t change whether HSE would decide to prosecute, or how it prosecuted, said Peter McNaught. “There’s a risk that it adds some complexity, but I think judges will take a common-sense approach.”
That in itself, however, had the potential to be and “absolute disaster”, said Simon Joyston-Bechal. “Is the risk of falling off this ledge low, medium or high? What does that mean?
“Each of those categories could make a £1m difference, and everyone will have a different opinion. It’s all been created for the laudable aim of being consistent and enforceable, but I think it just introduces an element of randomness. I find myself advising my clients their fine could be £30,000, or it could be £10m.”
“Before the guidelines we knew what features would have an influence,” said Kizzy Augustin. “It was easy to understand, but there’s so much now that judges have to take on board – you need a maths degree to understand the probability of risk. I think we’ll see that clients are going to be much more likely to put up a fight because they’re much more likely to be in those top categories.”
