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By Steffan Groch
There can be little doubt that health and safety offences are increasingly being regarded in the courts as more serious, not least as more courts are becoming accustomed to dealing with them. ‘Back in the day’ it was all too common to hear judges or magistrates say, “This is the first health and safety case I have dealt with…” Now we hear those words less frequently.
It is probably true to say that over the past 15 years, since I have been practising in health and safety defence work, the profile (and therefore fines) of health and safety has risen. That said, over the past few years, fines have largely reached a plateau. That might well be because the courts feel that appropriate levels of fines are being handed down. Either way, the Sentencing Council believes fines are still too low.
The answer to the question, “Are fines high enough?” depends on who you ask. Safety professionals might well welcome larger fines giving them “power to your elbow”! The board may feel less comfortable with more significant fines given the inevitable stakeholder interest and/or challenge they may experience.
One thing, in my judgement, is inevitably the case. The larger the fines, the more analysis there will be of the merits of the case. Regulators should be prepared for the increased scrutiny by defendants both during an investigation process and during any criminal litigation.
While many commentators would have little sympathy for the corporate defendant, how will greater scrutiny by the courts play out with regard to individual defendants? Will more defendants, in the short term at least, be committed to the Crown Court alongside the corporates? Probably.
Two major developments will ensue as a result of the current Sentencing Council’s guidelines. First of all, there will be more forensic financial analysis of the defendants. Second, there will be more negotiations and discussions around what level of ‘culpability’ existed.
While it is fair to say that both of these broad concepts are not new in terms of what we health and safety lawyers currently call the ‘Friskies Schedule’ negotiations, I anticipate a far greater need on the part of the defendant to present the finances of the defendant, in order to fairly assess their ability to pay, away from the crude measure of turnover.
I also expect the prosecution to present additional evidence to deal with the question of ‘culpability’. For example, are previous enforcement notices and convictions relevant to culpability – the answer is probably yes. What about fee for intervention (FFI) notices of contravention (NOCs)? I’d welcome a debate with HSE as to the status of FFI/NOCs. I wonder whether HSE would rule out referring to these FFI/NOCs as part of their assessment of ‘culpability’?
In terms of food safety fines, while the step change in fine levels for health and safety cases is vast, the proposal for food safety is truly staggering and the scope of offences caught by the proposal (all of the EU law enforced by the Food Safety and Hygiene (England) Regulations 2013) goes far beyond ‘safety’.
The Sentencing Council’s own research document shows that the mean fine level for food safety offences is approximately £2,000 for offences that attract a potentially unlimited fine. Not only this, but they also show that the number of offences recorded is actually trending downwards.
Yet, despite this, the Sentencing Council is recommending that for a company over £50m, the starting point for the lowest seriousness of offence would be £10,000 – or about five times the current mean for all offences at all levels of seriousness. Such a jump is difficult to understand but the justification for a starting point of £1.2m for the most serious cases (it could be as much as £3m or above for defendants with a larger turnover) is incomprehensible, especially when we are aware of only one case where the aggregated total fine imposed across the total offending (as opposed to for one charge as proposed here) topped £1m.
Business takes food safety seriously – the reducing offending levels show this. These fine levels are not necessary to change behaviour or protect consumers.
All in all, these new guidelines raise a lot of questions and concerns. Of course, if the net effect of the guidelines is to improve health and safety performance in the UK, then they should be welcomed.
Steffan Groch is partner and head of regulatory chair of Health and Safety Lawyers Association, DWF LLP. He advises proactively on health and safety systems and procedures, with a particular emphasis on corporate manslaughter, directors’ duties and tackling claims cultures within the workplace.
The consultation on the Sentencing Council’s guidelines ends on 18 February 2015.
To contribute, visit: http://sentencingcouncil.judiciary.gov.uk/media/1128.htm