Trends in the sentencing of individuals for health and safety breaches

In this article, we look at developments since the introduction in 2016 of the Sentencing Council’s Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline (the Guideline). We also consider the trends that we have seen develop in the sentencing of individuals in the aftermath of serious health and safety incidents.

Application of the Guideline to individuals

The Guideline (which came into effect on 1 February 2016) lowered the custody threshold for individuals charged with health and safety offences by introducing the increased possibility of a custodial sentence for offences, in some circumstances even where those offences are assessed to be of low culpability.

Assessment of the impact of the Guideline

Since the introduction of the Guideline, we have seen an increased scrutiny by investigators (such as the police and HSE) on individuals’ actions, even where an incident is relatively minor. A trend seems to be developing that an increased number of individuals are facing prosecution for health and safety offences, with the real risk of a prison sentence if found guilty. In our experience, sentencing judges are carefully exploring all of the sentencing options available under the Guideline including community service orders which historically were not imposed for these types of case.

In April 2019, the Sentencing Council published an Impact Assessment for the Guideline (the Assessment) which confirmed that the trends we have seen is true also of the sector generally. The Assessment involved an analysis of data from the HSE and other sources to assess the impact of the Guideline on sentence outcomes and fine amounts.

The Assessment found that there has been a general rise in the number of immediate and suspended custodial sentences, together with community service orders, imposed by the courts for these types of offences. That said, although prison sentences are on the rise, the Assessment revealed that fines (as opposed to custodial sentences) remain the most frequently imposed sentence for individuals prosecuted for health and safety offences. The level of the fines have however increased.

An example of how the Guideline is applied to individuals

R v Andrew Gibson (trading as Crosby Kitchens), sentenced July 2019

  • The charge (breach of s.2(1) of the Health and Safety at Work etc. Act 1974) stemmed from an incident where an employee severed his fingers when his hand made contact with an unguarded table saw blade whilst cutting sheets of chipboard.
  • The HSE investigation found the employee was pushing sheets through the saw by hand and that key parts of the guarding arrangements, such as the crown guard and riving knife, were not attached to the machine.
  • Mr Gibson was sentenced in July 2019 to 26 weeks in prison, suspended for 18 months, and was ordered to carry out 200 hours of unpaid work and to pay £17,000 in compensation to the injured employee.

Prior to the introduction of the Guideline, an offence of this type would likely have attracted a small fine. Now we see the court applying the range of sentencing options including a suspended custodial sentence and a community service order, which were rare outcomes in health and safety cases pre-Guideline. In other cases we are seeing individuals being prosecuted in circumstances where, pre-Guideline, it would have been unlikely that investigators would have taken an interest in that line of enquiry.

The definitive guideline for the sentencing of manslaughter offences

The Manslaughter Definitive Guideline (Manslaughter Guideline) was published on 31 July 2018 and applies to all offenders sentenced for manslaughter on or after 1 November 2018, regardless of the date of the offence. The Sentencing Council’s aim in producing the Manslaughter Guideline was to promote “consistency in sentencing and transparency in terms of how sentencing decisions are reached”.

The Manslaughter Guideline covers four types of manslaughter including gross negligence manslaughter where the death is a result of a grossly negligent act or omission on the part of an individual. This may for example, encompass a reprehensible breach of duty, which has caused the death of an employee in the workplace.

When sentencing an individual convicted of an offence of gross negligence manslaughter, under the Manslaughter Guideline:

  • An assessment of the culpability of the individual is required, which ranges from low, medium, high to very high.
  • Where the individual’s culpability is considered to be very high, the starting point when considering the appropriate sentence is 12 years’ custody, with a potential range of between 10 to 18 years’ custody after relevant aggravating and mitigating factors are taken into account.
  • Even cases involving a lower level of culpability attract a starting point of two years’ custody.

The potential abolition of shorter prison sentences

This spring, the Justice Secretary suggested adopting the approach followed by Scotland, which involves a presumption against imposing short prison sentences, by reducing or abolishing altogether the use of short-term prison sentences of six months or less. It is suggested that short jail terms disrupt family lives and do little to reduce reoffending, and should be replaced by harsher community orders with strict tagging requirements attached.

Whilst it remains unclear whether this approach will be implemented across the justice system, the elimination of shorter prison sentences may see a revision of the Guideline in relation to the sentencing of individuals for health and safety offences. Whether or not that will result in fewer custodial sentences or lead to an increase in prison sentences of more than six months remains to be seen.

Comment

Post-Guideline, individuals who fall foul of health and safety law can find themselves not only more likely to be investigated and prosecuted, but with more severe punishment as well.

The Manslaughter Guideline is a further indication of the move towards tougher criminal sentences being imposed for health and safety related failings. It is now more important than ever that those who are managers and directors of businesses are aware of their personal responsibilities for safety and that companies have robust health and safety management systems in place, which take account of the latest legislative requirements and industry guidance.