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November 13, 2014

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Sentencing Council: Health and safety consultation

By Michael Caplan

The sentencing of organisations or individuals convicted of health and safety, corporate manslaughter or food safety and hygiene offences is set to change following the publication of proposed sentencing guidelines on 13 November.

The Sentencing Council is aiming to help judges and magistrates deal fairly and proportionately with what is a very broad area of offending that covers a wide range of circumstances. The type of offenders that may commit these offences varies greatly and, with the exception of corporate manslaughter, there is a broad spectrum of seriousness encompassed within each offence.

Offenders that are organisations in these cases may range from a small family business to a multinational company, from statutory bodies to charities. An individual may commit a health and safety or food offence in their capacity as a director of a company or an employee. Alternatively, they may be an individual who puts others’ lives at risk.

We are introducing these guidelines because there is at the moment a lack of comprehensive guidance for sentencers. There is a guideline covering corporate manslaughter and fatal health and safety offences, but no specific guidance on sentencing food safety offences or non-fatal health and safety offences.

Furthermore, existing guidance only covers offences committed by organisations rather than individuals. This marks the first time that guidelines will cover all the most commonly sentenced health and safety offences and food safety offences.

We also concluded there was a need for expanded guidance due to the fact that the consequences of health and safety offences can hugely vary and there are some difficult issues that arise in these cases, such as those relating to the risk of – rather than actual – harm, identifying appropriate fine levels for organisations, or fining offenders that are charitable or public bodies.

There have also been concerns that some sentences imposed for these offences have been too low, particularly in relation to large organisations convicted of the most serious health and safety and food safety offences.

As a result, we analysed current sentencing practice, and are proposing to increase sentence levels in such situations. This will ensure sentences that are proportionate to the seriousness of the offence while, as required by law, taking account of the financial means of the offender.

We are proposing that an offending organisation’s means will initially be based on its turnover. This is a clear indicator that can be easily assessed and is less susceptible to manipulation than other accounting methods. However, our proposals also require the court to consider organisations’ wider financial circumstances to ensure that fines can be properly and fairly assessed.

The Sentencing Council’s aim is to help ensure sentences that not only punish the offender, but deter them and others from committing these crimes while removing any financial benefit they may have had from offending. These offences can result in organisations that maintain proper standards being undercut by offending businesses who are often motivated by saving money at the expense of safety.

We therefore think that fines should be big enough to have a real economic impact, which will bring home to the offending organisation the importance of achieving a safe environment for those affected by its activities.

Our proposed guidelines are unlikely to change sentencing levels in relation to lower level offences. This is because we think they are already proportionate, and because fines must be based on the financial means of the offender.

We are interested in what health and safety practitioners think about our proposals – they are now subject to a consultation until 18 February 2015. In particular, we are interested in feedback on the approach to sentencing we have taken, what factors should make these offences more serious or less serious, the principles of sentencing in this area and sentencing levels.

For more information and to send your views, visit: www.sentencingcouncil.org.uk

Michael Caplan QC is a member of the Sentencing Council and solicitor practising in the areas of domestic and international, criminal and regulatory law and is one of the few solicitors to have been appointed QC. As well as having been a partner at Kingsley Napley for 30 years, he has been a part-time judge (Recorder) in the Crown Court for many years and is authorised to sit as a Deputy High Court Judge. Michael is also a chairman of the Police Appeals Tribunal, is on the Criminal Procedure Rule Committee chaired by the Lord Chief Justice and is a former chairman of the Solicitors Association of Higher Court Advocates.  He has written and lectured on a number of topics. He was appointed to the Sentencing Council in April 2013.

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