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Following a consultation last year, the Sentencing Council has now published its definitive guidelines covering health and safety, corporate manslaughter and food safety and hygiene offences.
The publication of the guidelines means that for the first time, courts in England and Wales will have comprehensive sentencing guidelines covering the most commonly sentenced health and safety offences and food safety offences.
Up until now, there was only a definitive guideline produced by our predecessor the Sentencing Guidelines Council for corporate manslaughter and health and safety offences causing death, and very limited guidance for sentencers for other health and safety and food safety offences.
These can be complex and serious offences that do not come before the courts as frequently as many other criminal offences. We found that given the lack of familiarity with some of these offences, sentencers wanted more guidance. Our research also showed that this lack of familiarity had, at times, resulted in fines that were not proportionate to the means of offenders and did not reflect the seriousness of offences.
We want fines for these offences to be fair and proportionate to the seriousness of the offence and the means of the offender. In order to achieve this, the guidelines set out sentencing ranges that reflect the very different levels of risk of harm that can result from these offences.
In introducing greater proportionality to sentencing, we expect that in some cases, offenders will receive higher penalties, particularly large organisations that are convicted of serious offences.
While corporate manslaughter obviously always involves at least one death, the seriousness of health and safety offences is very varied. One incident could involve people being put at the risk of minor harm even though no one was actually hurt, while another incident could risk or result in multiple fatalities. Food offences also vary hugely. Poor hygiene or preparation standards in a restaurant kitchen could put customers at risk of illness or could lead to a fatal outbreak of food poisoning.
As well as considering the risk of harm caused, the sentencing ranges also consider offender culpability. An offender could be guilty of minor failings in otherwise proper procedures, or could be involved in deliberately dangerous work practices.
It is important to remember that these sentences apply to criminal offences where the culpability of an offender has been demonstrated. In circumstances where an employer took all proper measures to prevent an incident but one still occurred, it is unlikely a prosecution would be brought. Where there has been a conviction, the harm assessment within the guideline limits the assessment of actual harm caused to harm, which was reasonably foreseeable.
The guidelines also require the court to take into account the size of the organisation when determining the sentence. We have chosen to use turnover to identify the starting point of the fine since this is a clear financial indicator that can be readily identified by sentencers in accounts or annual reports.
However, we are clear that turnover is used only to determine the starting point of the fine. The guidelines then require an overall assessment of the organisation’s financial circumstances, taking into account any additional relevant financial information, such as the profit margin of the organisation, the potential impact on employees, or potential impact on the organisation’s ability to improve conditions or make restitution to victims. This means sentences will always be tailored to the offender’s specific circumstances, and may move up or down or outside the ranges entirely as a result of these additional mandatory steps.
The previous guideline produced by the Sentencing Guidelines Council stated that for an offence of corporate manslaughter, the ‘appropriate fine will seldom be less than £500,000 and may be measured in millions of pounds’. However, since by law the court is required to take into account the means of the offender it cannot set fines that an offender simply cannot pay. The new guidelines therefore provide a more nuanced and proportionate structure than that set out under the previous guidelines.
As well as punishment, the guidelines provide for remedial orders to be made by the court in addition to or instead of punishment in cases where they may be appropriate, although addressing remedial action with offenders remains the responsibility of the Health and Safety Executive rather than the courts. The guidelines also include a range of mitigating factors, which allow for voluntary positive action to remedy a failure on the part of offenders to be reflected in sentences.
We would like to thank all those who responded to the consultation and those who attended consultation events. During the consultation, we held events with health and safety legal practitioners and those in construction, insurance, utilities, industry, retail, food manufacture, hospitality, and leisure, as well as the Food Standards Agency and enforcement practitioners from local authorities to get as many insights as possible. We received over 100 responses.
The Sentencing Council carefully considered all of the responses and we have published a comprehensive consultation response document which is available on our website. While the general approach outlined in the draft guidelines has been maintained, we have made a number of amendments to improve their efficacy.
Following publication today, the guidelines will come into force in courts on 1 February 2016 and will apply to any case sentenced on or after that date.
We hope they will provide valuable guidance in sentencing what are often complex cases and will improve consistency in the approach to sentencing these offences.
Michael Caplan QC is a member of the Sentencing Council