Safety & Health Expo 2017, saw three experts came together to look at the impact of the sentencing guidelines, 16 months after they came into force.
Michael Appleby, partner at Fisher Scoggins Waters, joined Jill Crawford, health and safety lawyer at BLM and Gary Rubin, Partner, head of regulatory team, Blackfords LLP, in the Keynote Theatre for the debate which looked at some of the key cases over the last year and the trends in terms of fines and custodial sentences, giving their offerings on what the future holds.
One key topic that seemed to come up over and over again is the impact the guidelines have had on prosecutions against individuals, which have tripled since the guidelines came into force, with more custodial sentences being handed out than ever before. Here, Lauren Applebey summaries the panel’s key points on where we are now with the sentencing guidelines and what we should expect from the next 12 months.
I think we have to understand that now if you are an individual successfully prosecuted for a health and safety offence, the likelihood is that you will go to prison. That is the reality and it can stretch to health and safety advisors, directors or even employees charged under Section 7 for a breach of their general duties of care. That’s the trend we are seeing.
Crawford began proceedings by looking at the level of fines since the introduction of the guidelines, which is up 102%, a figure she believes will increase (as the statistics only look at data until the start of 2017).
“The BLM research tracker looks at trends,” Jill said, “and research shows that 23 companies have been fined over £1m – with the largest fine standing at £5m for Merlin Entertainments, following the Alton Towers Smiler ride crash”.
She continued: “95% of cases have resulted in conviction, and cases against directors have increased significantly, with custodial sentences up.”
Each speaker was asked whether they felt there is a consistency to the level of fines being handed out.
For Blackfords LLP, Gary Rubin said: “They are consistent in that they are higher. However, courts are inconsistent because of the areas surrounding likelihood of harm and where the judge wants to pitch that. The judge essentially does a risk assessment on what went on before. We are seeing a different tranche of sentences being handed out by the courts”
Crawford agreed: “The guidelines are still subject to interpretation which leads to inconsistency.
Michael Appleby added: “Culpability, in my experience with a severe injury or fatality, seems to cloud the way the incident is perceived. Courts or judges tend to look at high/ medium/low – putting themselves in the position of how a risk is looked at before the event.”
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Looking at the impact of the guidelines on cases against individuals, Rubin referred to some research he had done at the beginning of 2017 which stated that 189 individuals have received an immediate or suspended custodial sentence since The Health and Safety at Work Act 1974 came into force, in addition to 54 for the common law offence of manslaughter.
He said of the 189 individuals, a dozen were sentenced after February 2016, when the new definitive guidelines came into being.
“So essentially what we’ve had is 189 cases in all of those years – and 12 in Feb-June 2016.
“I don’t know where we are exactly since last June but I am sure it’s gone up considerably. Seven of those 12 custodial sentences were imposed immediately. So that’s the fundamental difference. That shows how much of an impact this is having on individuals in H&S offences and I think what we will see is a trend now coming through to the fore.” He added.
Rubin continued to explore cases against directors.
He said: “There has been an increase now in applications for directors’ disqualifications on the back of successful convictions for Section 37. So, they are using the guidelines to impose stricter and harsher sentences on individuals and then hammering them with a five year disqualification. They are happy to get a conviction and then pushing for disqualification thereafter.”
Crawford agreed: “These guidelines focus on individuals and on custodial sentences. Judges are automatically looking at custodial sentences because of the guidelines, prior to that they really didn’t.
“The government doesn’t really want to be sending people to prison at the moment, but there isn’t much of an alternative because of the guidelines. What we are seeing is the trend of imposing custodial sentences, but suspending them. And the problem with suspending them is that they still have a personal criminal conviction which can affect them in the future in terms of getting work, traveling abroad. You have to be very careful that you don’t fall foul of the HSE, I’m afraid.”
Appleby noted that the guidelines have “lowered the bar for custody.”
“When you look at the definition for medium culpability, it’s really just negligence,” he said, “and the starting point if there’s been a fatality or serious injury is 6 months in prison.”
When exploring cases again people other than directors, such as employees Jill said that the number of employees prosecuted under Section 7 by the HSE has actually dropped since the guidelines were introduced – although they all have received custodial sentences albeit suspended ones.
“So I think the HSE is now looking at the top of the chain rather than the bottom of the chain” she explained.
Rubin considered another area of the new sentencing guidelines – which makes changes to the benefits of an early guilty plea.
“I am more inclined to say to my clients, given the climate, that they need to plead not guilty and fight the case. You need to litigate to mitigate. Based on the guidelines as they are, if you make an admission, they have really culled the early guilty plea benefits. Originally you used to get around a third off for an early guilty plea, now that is at the discretion of the court hearing the case and invariably you don’t get more than 20%, depending on the conduct of the parties during the investigation.” he said.
Appleby added: “There is now new guidance on a discount for an early guilty plea – it has not been uncommon for the defence to say – we are not quite ready, we haven’t seen all the evidence. What has changed now is that you have to enter that early guilty plea at the earliest stage, the first hearing in the magistrate’s court.
“It’s very rarely the facts of a case that are dispute, it’s the interpretation of the facts. I get the impression now that companies are more willing to fight the cases. There’s a hardening approach. We have to ask if the prosecutors have the resources if more and more people start fighting their cases”
On this topic Crawford highlighted the importance of early communication with the HSE, “I think it’s very important to engage with the HSE at the earliest possible stage, seek legal advice and try to convince the HSE to not go for that high level (of culpability)”.
Businesses so often don’t look at their health and safety procedures until they face a prosecution and then they do a complete overhaul – when really it should have been like that in the first place
The panel then explored the area of risk.
Appleby said: “In a H&S case all the prosecution have to prove is an exposure to risk if there is an accident or fatality. It is then over to the company to show that they have done all that was reasonable practicable.
“One of the problems that exists is that while it may be up you to prove what was reasonably practicable, the prosecution will be putting their two penn ‘orth in as to what they think is reasonably practicable. Which leads us to question how the HSE thinks a particular risk should be managed. Sometimes it can be hard to get across how you manage a risk – as the prosecution look a it in isolation.
“In one recent case the trial came about because we very much disagreed with how the HSE believed the risk should be managed. What occurred after 4 days of the trial was that the judge wouldn’t make a ruling on it but said the fine would be on a much narrower basis.
“This is one difficulty. The other is that you are looking at a risk through a prism of one particular case. and it may well be that that particular risk is dealt with in your particular industry day in and day out and facts you are dealing with, are very narrow.”
In summary, Jill Crawford said: “Businesses so often don’t look at their health and safety procedures until they face a prosecution and then they do a complete overhaul – when really it should have been like that in the first place to avoid the incident, the costs and bad publicity of having to go to court. I think it really is a case of companies focusing on their systems and ensuring they are being implemented.”
Michael Appleby mused over way the “new regime” looks at cases in a very different way to how they were looked at in the past.
He said: “The old regime looked at the injury or fatality. What the new guidelines look at is the culpability and the potential outcomes. So how serious could it have been against the level of risk. Of the 23 cases over £1m, eight were fatalities so what we are seeing is that even though the injury may not have been as bad as it could have been, the courts are now looking at the level of risk, and this is pushing up the levels of fines. Prosecutions, where there hasn’t been an accident at all, in days gone by it may have been a warning, but now we are looking at prosecutions.”
Gary Rubin concluded: “You need to look at the underlying features of the sentencing guidelines. They are all being used in tandem. You have to look at the whole structure of how prosecutions are now being commenced and how the courts are dealing with them.
“We are seeing more and more individuals being prosecuted in conjunction with the company. HSE in the past would have looked at the company first. Now we are finding more that they are being prosecuted in tandem.
“I think we have to understand that now if you are an individual successfully prosecuted for a health and safety offence, the likelihood is that you will go to prison. That is the reality and it can stretch to health and safety advisors, directors or even employees charged under Section 7 for a breach of their general duties of care. That’s the trend we are seeing.”
