Increase in fines for health and safety breaches
Labour & European Law Review Weekly Issue 446 18 November 2015
Some organisations and individuals convicted of corporate manslaughter, health and safety and food safety and hygiene offences can expect to face higher penalties from the beginning of next year, following the publication of new sentencing guidelines.
The aim of the guidelines, published by the Sentencing Council, is to ensure that fines issued by the courts have a real economic impact in order to bring home to both management and shareholders the need to comply with health and safety legislation.
There has been particular comment on the increase in penalties for serious offending which reflected a concern that in the past, some offenders did not receive fines that properly reflected the crimes they committed or their wealth as an individual or a company. The Council wants fines for these offences to be fair and proportionate to the seriousness of the offence and the means of offenders but it has been suggested by some that there could be up to four fold increases.
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. The sentencing ranges also take into account how culpable the offender was. This could range from minor failings in procedures to deliberately dangerous acts.
While prison sentences are available for individuals convicted of very serious offences, most offences are committed by organisations and therefore fines are the more common response of the court and there has been comment that the new potential for heavier fines will encourage prosecutors to go down the fining rather than corporate manslaughter route . The guidelines use the turnover of the offender to identify the starting point of the fine as it can be easily ascertained. However, turnover is not the only factor taken into account. The guidelines also require the court to “step back”, review and adjust the initial fine if necessary.
A court will be required to take 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 should mean that sentences will always be tailored to the offender’s specific circumstances.
Tom Jones of Thompsons Solicitors commented “For all the scaremongering by those who represent businesses about companies being driven from the UK by these changes, the argument for punishment fitting the crime is unanswerable. This isn’t the sentencing straight jacket for the courts that some have suggested and for those of us who consider prosecutors and courts too timid when faced with well-paid QC’s representing big business, the fear is that the introduction of increased factors to be considered by a court will increase judicial challenges. Meanwhile the guidance is itself is timid in respect of disqualifying directors saying just that the courts should consider this.”
The guidelines, which take effect from 1 February 2016, can be read here: https://www.sentencingcouncil.org.uk/wp-content/uploads/HS-offences-definitive-guideline-FINAL-web.pdf