Author Bio ▼

Dr Simon Joyston-Bechal is a director at Turnstone Law. He is widely regarded as one of the UK’s leading health & safety lawyers. Having previously qualified as a doctor, he is uniquely placed to deal with technical, safety and health related legal issues. As well as defending H&S enforcement, he focuses on training senior management and advising organisations on legal preventive measures to reduce the likelihood of prosecution in the event an incident occurs. Contact Simon at [email protected].  
March 8, 2017

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H&S defendants saved from worst effects of latest sentencing guideline on reduction in sentence for a guilty plea

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By Dr Simon Joyston-Bechal, Turnstone Law

Many readers will be aware of how the 2016 sentencing guideline for health and safety offences drastically increased the level of fines and the likelihood of imprisonment.  However, the potential impacts of new guidelines on the reduction of sentence for a guilty plea were little appreciated.  Fortunately, the version published yesterday (7 March 2017) has been sufficiently amended to soften the additional impact on health and safety defendants.

The Sentencing Council published its guideline on Reduction in Sentence for a Guilty Plea on 7 March 2017.  Although this set of sentencing guidelines doesn’t mention health and safety at all, they risked raising actual health and safety fines yet further.  These new guidelines restrict the timing and amount of discount that will be applied to reduce fines for most crimes if the defendant pleads guilty.

How do punishment discounts for a guilty plea work now?

The present arrangement is that if a defendant pleads guilty “at the earliest reasonable opportunity”, then the court will usually discount the criminal sentence by a third.  This leaves discretion for the court.  Most health and safety cases in the past have led eventually to a guilty plea and, mostly, the one third discount is applied, even though it may have taken weeks or months of negotiation between the prosecution and the defence to agree the basis of the plea.

What would have happened under the Sentencing Council proposals?

The Sentencing Council conducted a consultation in 2016 on a draft proposed guideline that unfairly penalised health and safety defendants.  It was written on the assumption that a criminal is a person who knows whether he or she has committed the crime (e.g. burglary).  In order to get the maximum one third discount under the proposed rules, the defendant would have been obliged to plead guilty at the first hearing in the Magistrates’ Court or the first time when the court asks how he or she intends to plead.

At this stage in health and safety cases, the prosecution often won’t have provided an adequate case summary, nor need they have set out the aggravating, mitigating, culpability and harm category features that will determine the sentence.  Defendants often won’t have had time to get informed legal advice on the chances of successfully running the defence that they did everything reasonably practicable, won’t have had an opportunity to get an expert to review the prosecution materials and, for companies, won’t have had time to follow corporate formalities before instructing the lawyer to enter a guilty plea.

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Without the special features of health and safety cases being taken into account, many well-advised defendants would have missed out on the one third discount.  This would also have led to more defendants fighting the case at trial, having lost a big part of the incentive to plead guilty – which would completely undermine the purpose of the Sentencing Council’s proposals.

What is the position under the definitive guideline on reduction in sentence for a guilty plea?

On behalf of the Health and Safety Lawyers Association, having surveyed its members, I argued in the consultation for changes to be made to reflect the special circumstances of health and safety cases.  I am relieved that the final version protects health & safety defendants with an important exception that restores the court’s discretion as follows:

“Where the sentencing court is satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one-third should still be made.”

A good health and safety defence lawyer will not usually advise his or her client to plead guilty without first seeking to negotiate and hopefully agree a basis of plea that is acceptable to the prosecution and defence.  As part of that resolution, the prosecution can be asked to confirm to the court that in their view the above exception has been met, in which case the court retains the discretion to award a maximum one-third discount even if the case has passed beyond the first court hearing.

This is a major concession and a great source of relief to health and safety defence lawyers.  It ought also to be good news for prosecutors, because retaining the maximum discount prolongs the incentive for health and safety defendants to plead guilty in appropriate cases.

What’s next from the Sentencing Council?

The Sentencing Council is working on a draft guideline for sentencing of individuals convicted of manslaughter, with includes gross negligence manslaughter in health and safety cases.  This draft should be released for consultation shortly and could substantially increase the number of years of gross negligence manslaughter jail sentences.  I have discussed an early preview draft with the Sentencing Council and hope that my concerns about that draft will be accommodated.  Let’s wait and see….

Dr Simon Joyston-Bechal is a director at Turnstone Law.  He is widely regarded as one of the UK’s leading health & safety lawyers.  Having previously qualified as a doctor, he is uniquely placed to deal with technical, safety and health related legal issues.  As well as defending H&S enforcement, he focuses on training senior management and advising organisations on legal preventive measures to reduce the likelihood of prosecution in the event an incident occurs.  [email protected]

 

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