Guiding safety – How are sentencing guidelines determined?
Talking about the ‘Definitive Guideline for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences’ (better known as the Sentencing Guideline) in the context of informing boards or executives of their safety obligations is no longer ‘new’ news. Most informed professionals are (at least vaguely) aware that things have changed, fines are much larger and judges have to follow a more formulaic approach than previously in setting the appropriate tariff when sentencing offenders. But what more can be said?
In this article, particularly in view of the difficulty posed in predicting with certainty where, in a range of potential financial penalties, the fine that will be imposed will land, Paul Verrico, Partner at Eversheds Sutherland and Claire Watson, Associate at Eversheds Sutherland, look at the nine steps set out in the Sentencing Guideline and ask what a duty holder can do to prepare for a hearing:
1. ‘Determining the offence category’
This step requires consideration of two factors: culpability and harm. Culpability ranges from very high, a deliberate breach of or flagrant disregard of the law, to low, where the failings were minor and occurred as an isolated incident or the offender did not fall far short of the appropriate standard. In our experience it is rare for a case to be pitched as ‘low’ by a prosecutor.
A harm category is determined by the risk of harm created by the offence, taking into account the seriousness of the harm breached (such as death or a progressive, permanent or irreversible condition) and the likelihood of that harm arising (low, medium or high). In 2019, the Sentencing Council undertook an assessment of the impact and implementation of the Sentencing Guideline, and found that, in 81 per cent of cases analysed, those sentencing mentioned both the seriousness of harm risked and the likelihood of harm, suggesting that both aspects of harm are being taken into account in the sentencing process.
In Faltec the Court of Appeal stated that the risk of harm arising should be determined by reference to the criminal standard of proof. The Court cannot substitute an impressionistic view for the evidence…the Court’s characterisation ought not to be divorced from the reality of the evidence before it. The primary focus of the Guideline, and the gravamen of many health and safety offences is exposure to risk not harm.
The Court is guided to consider moving up a harm category or moving up within a category range where the offence:
- Exposed a number of workers or members of public to the harm; or
- Was a significant cause of actual harm.
In preparation: Consider whether an offence category can be agreed with the Prosecution. This is not always possible and Courts are not obliged to abide by any agreed starting points, but reaching an agreement is helpful.
2. ‘Starting point and category range’
At this stage, the Court must focus on the organisation’s annual turnover or equivalent to reach a starting point for the fine.
Where an organisation’s turnover very greatly exceeds that of a large organisation (£50 million and over), the guideline states that it may be necessary to move outside of the suggested range to achieve a proportionate sentence. This has been a tricky issue to determine, particularly as the guideline gives no further indication of what is to be considered as “very greatly exceeding” the turnover and by what amount to move outside of the suggested range. In Whirlpool UK Appliances, the Court identified that there was no arithmetic approach to define the boundary between a large and very large organisation. We understand that a case where a £300 million turnover business has been determined to be ‘very large’ is on leave to the Court of Appeal.
Aggravating and mitigating factors are also considered at this stage.
The fine must reflect the seriousness of the offence and the court must take into account the financial circumstances of the offender.
Emphasis is placed on the fine being “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”.
Note of caution: In a recent case, involving an organisation in the healthcare industry, the Sentencing Judge noted that the defendant organisation’s group company had a substantial turnover and, accordingly, increased the fine to reflect the “economic realities”. On appeal, the Court of Appeal determined that the phrase “economic realities” in the Sentencing Guideline could not be extended to mean that the parent’s resources belong to the subsidiary simply in order to justify a large increase in fine at Step Three, unless there was some special factor present.
The Court now looks at the financial circumstances of the offender in the round. This does not necessarily mean that the fine should be adjusted upwards: it can also be adjusted downwards where the turnover of the organisation is high but profit is low.
These first three stages are seen as the most significant stages and where the majority of the focus is placed during sentencing. The next stages can be taken into account depending on the circumstances of the case.
4. ‘Other factors that may warrant adjustment of the proposed fine’
There are limited circumstances in which such adjustments are made; the most obvious being where the offender is a public body or charity and the Court recognises the impact that the proposed fine would have on the provision of its services and those who benefit from them.
5. ‘Any factors which indicate a reduction, such as assistance with the prosecution’
We have seen little evidence of this step being considered – it mainly relates to the offender offering information to authorities to help with their investigation of (mainly) offences committed by others; a court may make a downwards adjustment under this step.
6. ‘Reduction for guilty pleas’
The tradition of an early guilty plea for a criminal offence attracting a significant discount is preserved: Fines can be reduced by up to one third:
Consider: Enter a guilty plea (where appropriate and following discussion with your solicitor) as soon as possible to maintain full credit for entering a guilty plea. Consider carefully the Basis of Plea and whether it is appropriate for this to be agreed with the prosecution. Bear in mind that the ‘third off’ comes from a notional judicial starting point – litigating to mitigate with no discount may still produce a lower fine.
7. ‘Compensation and ancillary orders’
In addition to a fine, the Court is entitled to consider whether to make ancillary orders such as a remedial order or compensation order.
8. ‘Totality principle’
Where a defendant is being sentenced for more than one offence, the Court must look at whether the total sentence is just and proportionate. By way of example, in Faltec, two different sentences were given in the same judgement – this addressed two specific different and unrelated serious breaches of safety legislation.
There is a duty to give reasons for, and explain the effect of, the sentence.
Where to next?
The reality is that only very serious injuries, incidents and occupational diseases tend to trigger investigation. In a system where over 70,000 RIDDOR reports were made in the last 12 months, of which 147 were for worker fatalities, it is striking that only 394 prosecutions found their way to court in 2019. Interestingly, the HSE states that one of the reasons for such low numbers is…
‘The increased time being spent on dealing with challenges raised with defence solicitors on the Sentencing Guidelines and greater number of Newton hearings (where a ‘guilty’ plea has been entered but where certain factual matters remain unresolved and both parties’ views must be heard before a judge)’ (HSE Statistics 2020)
It’s encouraging that many companies are proactively developing their awareness of health and safety in the workplace. Whilst the Guideline amounts can be eye-watering, it is increasingly rare for organisations to find themselves in the dock. It’s never been more important for dutyholders to behave appropriately and ethically to look after their staff and third parties – instead of focusing on what the sanction can be financially, they should look to reputation cost, staff satisfaction and recruitment perceptions in ‘doing the right thing.’
Paul Verrico is a Partner and Claire Watson is an Associate in the Eversheds Sutherland leading Environment, Health and Safety (‘EHS’) legal practice. Paul and Claire defend organisations that are being investigated by the regulators following an alleged breach of health and safety legislation.
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