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November 3, 2015

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The most dramatic change in health and safety enforcement since 1974

lady-justice-677945_640By Simon Joyston-Bechal

The new sentencing guidelines for health and safety offences published today are set to revolutionise punishment for health and safety offences. 

The Sentencing Council’s stated intention is to increase the level of fines for serious offences, particularly for larger companies; whilst reserving prison sentences for very serious offences.  In my view, the formulaic approach laid down in the new guidelines will greatly increase fines across the board and most dramatically for very large companies.  More worryingly, many more directors, managers and junior employees will be handed custodial sentences due to a significantly lower threshold for imprisonment.

The new sentencing guidelines apply to health and safety offences committed by organisations and individuals, as well as to corporate manslaughter and food safety/hygiene offences.  They introduce a structured nine step approach that the Court should follow, so as to calculate sentences.  This involves plugging culpability and harm factors into a series of tables to reach recommended starting point fines, as well as ranges of fines above and below the starting points.

The new regime has been carefully calculated and will certainly improve consistency across England and Wales.  It was published in draft for consultation in November 2014 and the final version published today is little changed from the draft, with the same figures and tables for fines as in the draft.  These will apply to sentences handed down from 1 February 2016, which make the guidelines retrospective in the sense that they apply to offences that have already been committed and have not yet come up for sentencing.

My observations on the new guidelines are as follows:

  1. Easy to fall into the ‘very high’ culpability category

The first step of the process is to allocate a culpability factor, ranging from ‘very high’ to ‘low’, which in turn will drive the allocation of a recommended fine.  The ‘very high’ category is triggered if there has been a ‘deliberate breach of or flagrant disregard for the law’.  Although that sounds very serious, with hindsight it may be all too easy for breaches to fall into this category.

It is not uncommon for employers to identify a safety problem and know they are non-compliant; this becomes a ‘deliberate breach’ if they don’t remedy it.  If prosecuted, they may now all too easily find themselves at the sharpest end of the new regime.

  1. The shift from outcome based sentencing to risk based sentencing

The main health & safety offences are based on exposing people to risk.  However, enforcement practice (as driven by public expectation) looks much more closely at outcome.  Breaches causing serious injuries and death have until now been much more likely to be prosecuted than mere exposure to risk; and the sentences have also been much heavier.

The Sentencing Council has adopted a new rationale, dictating that punishment should much more closely fit the level of exposure to risk.  So, exposing someone to a high risk of death should warrant almost the same sentence regardless of whether there is a fatality or merely an exposure to risk without any injury.

The consequence of this well intentioned change is to escalate offences that were previously dealt with moderately into the higher reaches of the new formulae.  Imagine, a loose railing is discovered on a busy walkway that could lead to somebody falling from a height of 10 feet.  The high risk of death or disability from someone falling can take this straight into the most serious harm category, even if nobody has fallen.

  1. Designating likelihood of harm as ‘high’, ‘medium’ or ‘low’

One of the steps is to designate the likelihood of harm as being ‘high’, ‘medium’ or ‘low’.  That appears to be sensible.  However, it may give false reassurance as to the fairness and objectivity of the new system.  If 100 people walk along the unsafe walkway each day, risking a fall of 10 feet, is there a high, medium or low risk that someone will be killed or disabled?

The problem is that ‘high’, ‘medium’ and ‘low’ are prone to wildly different interpretations.  Suppose the experts agree that there was a 1 in 10 risk that someone would have been killed or disabled by falling from that walkway throughout the period of the breach.  Even with such a precise expert view, is that a high, medium or low likelihood?  The court would struggle to answer that question without understanding the wider circumstances, looking at culpability and what actually happened.  But those factors are intended to be excluded from this stage of the calculation to make the process rigorous and fair.

  1. Extrapolation of fines for organisations whose turnover very greatly exceeds £50million

This issue will grab headlines in due course.  The guidelines, in combination with the Court of Appeal’s July 2015 judgement against Thames Water Utilities, pave the way for the very large companies to be fined in excess of £100million for the most serious offences.  That is clearly the Court of Appeal’s intention.

  1. Lower threshold for imprisonment

The culpability factor and harm category process is also used in order to produce a guideline starting point punishment for individuals.  At the more serious end of the scale, the court is driven to impose a custodial sentence.  So, where does the threshold for imprisonment now lie?

My interpretation of the new threshold is as follows:  if a director or employee knows there is a breach of the law that has at least a medium likelihood of causing death or disability, then the court is directed as a starting point to impose a punishment of one year’s imprisonment, with a range of between 6 and 18 months depending on other relevant factors.  Many will judge this to be fair if there has been a fatal accident.  But alarmingly, imprisonment will be the conclusion even if there has been no accident at all – just exposure to risk.

This is a very significant reduction in the threshold for imprisonment for health and safety offences.

In summary, the sentencing guidelines adopt a range of well-intentioned and apparently rational changes.  However, I am concerned the outcome will be very much more dramatic than intended, with much greater fines across the board and more individuals being imprisoned for offences that would not previously have been regarded as sufficiently serious to merit a custodial sentence.

It remains to be seen whether these changes will improve prevention and save lives, or drive hazardous industries abroad and bring public perceptions of over-zealous enforcement to new heights.

Simon Joyston BechalDr Simon Joyston-Bechal is a director at Turnstone Law.  He is widely regarded as one of the UK’s leading health and safety lawyers.  Having previously qualified as a doctor, he is uniquely placed to deal with technical, safety and health related legal issues.  He is the author of a leading computer based training aimed specifically at directors and senior managers, explaining what they need to do to protect their company from prosecution and stay out of jail. Contact Simon at [email protected]

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Jon

Simon, a very insightful article – thank you for sharing your views.

Steve Taylor

I’m tempted to think this fits into to the overall tendency for government and regulators “pulling back” from proactive to a do-if-you-dare culture, that if caught has significant punishment to deter others

Vince Butler
Timing impeccable, I’m running a training course 04/11/15 for managers and directors, I’m using the article to support my slides and discussion. My guess is the delegates will be in utter disbelief, especially putting people at risk with zero accident or harm and being caught can lead to a custodial prison sentence. I just hope that the medium to long term effect of these changes after several “big headlines” will NOT lead to army’s of ‘Safety-Bots’ crawling sites watching for the slightest error or lapse. I think ‘dramatic’ is understating the effect, my thought is:- “eye-popping; jaw-dropping; heart-stopping; WTF.!!” is… Read more »
Ray Rapp
From a h&s practitioner’s perspective I think the new guidance is sensible and proportionate. All too often sentences have been inconsistent and often paltry sentences have been given out for serious offences. I particularly agree with focusing on the risk as opposed to the outcome of an incident. The author of the article gives an example of a faulty railing at 10 foot where although no one has fallen the result is it becomes a high risk offence. What the author has omitted is whether this condition was known and nothing was done to rectify it. Furthermore if this railing… Read more »
Simon Joyston-Bechal
Thank you for your comments. Ray – you raise useful points. I chose 10 feet for my hypothetical example precisely because a fall from that height will most likely result in injuries less than fatal/disability, but nonetheless with a very real risk of fatality/disability. I am assuming that the failure in the railing is known about or ought reasonably to have been detected. Hence an offence has been committed. You make a good point that safety practitioners are used to allocating risks as ‘low’, ‘medium’ or ‘high’ in risk assessments. That’s fine for a subjective opinion on some risk assessments… Read more »
Ray Rapp
Hi Simon, thanks for responding. I do see the point you are making with regards to the precriptiveness of the process, which could lead judges to rely too much on an objective process when there is a great deal of subjectivity involved. This guidance must surely be used in conjuction with other evidence which I hope will provide the overall picture of the risk v outcome scenario. I also meant to have mentioned how the ‘outcome’ can provide a negative effect for the accused. For example, in the case of Porter who was a headteacher prosecuted by the HSE because… Read more »
Simon Joyston-Bechal
Thanks, Ray. The Porter case was indeed a travesty until the Court of Appeal overturned it. If anyone still has the energy to follow this debate, it takes us to a really important issue – the pros and cons of the existing predominantly outcome based approach to prosecution and sentencing as against the new predominantly risk based approach. There are indeed good reasons to justify a change of emphasis towards risk, which matches the HSWA offences. However, I believe the Sentencing Council has inadvertently lurched from one extreme to the other. The advantages of an outcome based approach are: it… Read more »
Ray Rapp
Thank again Simon, as I implied, I do not believe the outcome of an incident can be measured objectively – there are too many variables. No one ever got injured falling from height, it’s when you hit the ground it hurts! From 10 feet landing on grass the resulting injury is very unlikely to be fatal, but a serious injury is not inconceivable. Landing on concrete or worse, a brick wall, palisade railings will undoubtedly result in a serious injury and possible fatal. Even if statistics are available (and I doubt they are) they would be of little worth becuase… Read more »
Edward Andrews

Is not ironic that after pulling out The Management of Health and Safety at Work Approved Code of Practice (ACOP – L21) which was risk assessment prescriptive, the new sentencing guidelines focuses on the risk of harm as opposed to the outcome of harm!

Interesting times!!

Juli Williams

Hello, I was on the webinar on Friday but have not received a copy of the slides. Please advise how I should get a copy of them or when they will be sent out to all who attended. Thank you very much, Juli Williams

Paul Bilboa

Hi Simon,
As a H&S Officer of a Medium sized UK Ltd Company, I am interested to know your views on how this major change in implementation of tougher sentencing affects multi-national companies. Is the turnover of the parent company taken into consideration when calculating fines, or is it only calculated from the individual sub-company? If so, then this figure would rise into the Large Company category.
I would be grateful for your input.
Regards

Paul

trackback
Radical sentencing reforms change the game in health and safety | safetydelivery

[…] Courts must also now look at the degree of culpability and the level of exposure to risk. This is a radical shift and it is no surprise that some experts in the health and safety industry agree that the Sentencing Council’s guide signifies “the most dramatic change in health and safety enforcement since 1974.” (*See SHP Online at http://www.shponline.co.uk/the-most-dramatic-change-in-health-and-safety-enforcement-since-1974). […]