Many readers will have seen my article on the four inflations, explaining how the sentencing guidelines for health & safety offences will lead to a much greater rise in fines than was intended by the Sentencing Council. That was a pretty rich cake for organisations to swallow. But the latest plan from the Sentencing Council will add a huge layer of icing if left unchecked.
The Sentencing Council are consulting on another set of sentencing guidelines that don’t mention health & safety at all. The trouble is that they will have an unintended consequence of raising health and safety fines yet further. These new guidelines restrict the timing and amount of discount that will be applied to reduce fines for most crimes if the defendant pleads guilty. Unfortunately, the proposals don’t allow at all for the normal workings of health and safety prosecutions and they perversely curtail the ability of health & safety defendants to get fines reduced.
How do punishment discounts for a guilty plea work now?
The present arrangement is that if a defendant pleads guilty “at the earliest reasonable opportunity”, then the court will usually discount the criminal sentence by a third. This leaves discretion for the court. Most health and safety cases in the past have led to a guilty plea and mostly the one third discount is applied, even though it may have taken weeks or months of negotiation between the prosecution and the defence to agree the basis of the plea.
What would happen under the proposals?
The draft guideline is written on the assumption that a criminal is a person who knows whether he or she has committed the crime (e.g. burglary). In order to get the one third discount under the proposed new rules, the defendant will have to plead guilty at the first hearing in the Magistrates’ Court or the first time when the court asks how he or she intends to plead.
At this stage in health and safety cases, the prosecution often won’t have provided an adequate case summary, nor need they have set out the aggravating, mitigating, culpability and harm category features that will determine the sentence. Defendants often won’t have had time to get informed legal advice on the chances of successfully running the defence that they did everything reasonably practicable, won’t have had an opportunity to get an expert to review the prosecution materials and, for companies, won’t have had time to follow corporate formalities before instructing the lawyer to enter a guilty plea.
None of this is taken into account. The first result will be that many well-advised defendants will miss out on the one third discount. This will also lead to more defendants fighting the case at trial, having lost a big part of the incentive to plead guilty – which completely undermines the purpose of the Sentencing Council’s proposals.
Is there a solution?
I have been working hard in my role as Public Affairs member on the Committee of the Health and Safety Lawyers Association, in order to pull together some brief amendments to the proposed guideline, which would accommodate many of these concerns. I am now surveying the members’ views and hope to submit these suggestions to the Sentencing Council with the members’ backing.
Please add your comments in the response box at the foot of this article or take part in the consultation directly by 5 May 2016. This can be done online.
Conclusion
If we don’t get the proposals amended, the new sentencing guidelines on ‘guilty pleas’ will be the 5th inflation, driving yet further the unintended escalation of health & safety punishment in England and Wales.
Dr Simon Joyston-Bechal is a director at Turnstone Law. He is widely regarded as one of the UK’s leading health & safety lawyers. Having previously qualified as a doctor, he is uniquely placed to deal with technical, safety and health related legal issues. As well as defending H&S enforcement, he focuses on training senior management and advising organisations on legal preventive measures to reduce the likelihood of prosecution in the event an incident occurs. [email protected]
It would appear to be very unfair for a plea to be required prior to knowing exactly what the charge is.
Taking your points raised in “The Four Inflations” is it possible that companies will try to supress reporting of accidents/incidents based on the details you gave during the webinar last week, particularly the scenario where a company was fine £156k because an injury might have occurred.
To expand for the benefit of those who missed the webinar: Your question is whether the escalation in H&S fines, which is particularly extreme for “near miss” incidents (because they are now fined on the basis of the injury risked with no discount for there not having been any injury), would encourage under-reporting of incidents? I can see that this might happen but I would continue to advise clients to have a low threshold for internal reporting of incidents and then select carefully from that wide pool the reports that they are legally obliged to pass on under RIDDOR.