July 12, 2022The Sentencing Guidelines the court must follow if a person or a company has been convicted of an offensive relating to health and safety, were the subject of an illuminating presentation at Safety and Health Expo in May.
The presentation was given by David Travers QC of Gough Square Chambers, who acts for a wide range of clients ranging from major commercial and industrial concerns to small businesses, directors and other individuals.
He started by explaining that the courts must follow the guidelines, unless it would be unjust to do so.
Travers also said that the first step in the guideline is to the determine the offence category, which means:
If more than one person was exposed to risk, or if actual injury was a direct consequence, then the court would consider whether to move up to a higher category, Travers added.
The second step in the definitive guideline determines the size of the penalty a company can face. These start with a table based on the size of the company (based primarily on turnover), whether there are aggravating circumstances, particularly previous convictions or mitigating features all of which will affect the size of the penalty.
The third step in the guideline is that 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 addition, the court should step back and if necessary, adjust the initial fine reached at step two to ensure that it fulfils the general principles of sentencing.
The final step is whether a firm is entitled to a discount for pleading guilty, the largest discount can come from pleading guilty at the earliest opportunity.
Travers then concluded by talking about a recent case involving WH Malcolm Ltd in which he appeared for the Office of Rail and Road who prosecuted the case where a young boy died from an electric shock after a group of lads chased a football in a Daventry rail terminal.
The company was convicted after a trial at Northampton Crown Court before Her Honour Judge Lucking QC and a jury. Sentencing W H Malcolm judge said, company’s culpability was high and there was also a high likelihood of death. As the company’s breach had caused Harrison’s death, and because a number of children were exposed to the same risk she concluded it was necessary to consider a higher starting point than would otherwise be the case. She therefore took a starting point of £4m and a range of between £2.6m to £10m.
HHJ Lucking QC concluded that the company had carried out remedial fencing work beyond that considered necessary. However, W H Malcolm’s poor enforcement history, the inexplicable failure to carry out inexpensive steps identified as long ago as 2013, and the terrible effect of Harrison’s death on some of the children present when he died, led her to impose a fine of £6,500,000.
The Court of Appeal dismissed W H Malcolm’s application for permission to appeal.
The fine of £6,500,000 is believed to be the largest Health and Safety fine in over two decades and the largest ever imposed under the Definitive Guideline.
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Soooo, how does that address the predictable preexisting risk scale of visual and other debilitating muscular-skeletal repetitive stress injuries 58% of DSE operators experience reported by the HSE in their Better Display Screen RR 561 2007 ?