Paying the penalty: a new era of sentencing
The Sentencing Council’s Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline (the Guideline) came into effect a year ago today, on 1 February 2016.
One of the main aims of the Guideline was to achieve greater consistency in the sentencing of health and safety cases and also to subject larger companies to more significant financial penalties.
Pre-Guideline, fines in the millions of pounds were reserved for the most serious health and safety cases, usually involving multiple fatalities or matters of public interest (for example, rail disasters or the Buncefield explosion). That is no longer the case.
Post-Guideline, large companies are regularly attracting fines of that magnitude, even in cases where there has been little or no injury suffered.
Even more important, many will think, is the effect that the Guideline can have on individuals, where a site labourer or a director could be faced with time behind bars.
National safety agenda
The question has to be asked: are these huge fines and threat of prison time really necessary to drive the national safety agenda?
By the Health and Safety Executive’s own analysis, the UK consistently has one of the lowest fatality rates across the EU and with European surveys demonstrating that the majority of UK workers are confident that their job does not put at risk their health and safety. Therefore, we and our clients often question why it was felt that these titanic fines were necessary.
Why should UK big businesses be punished for creating a health and safety record the country should be proud of and a health and safety reputation that has set the benchmark for Europe?
Some cannot help but wonder whether the Guideline is merely a convenient vehicle to generate multi millions for the Treasury, and to demonstrate to the disenchanted that the government is tough on big business.
Of course large fines can sometimes be necessary to bring home the message that safety should be taken seriously, but the question remains whether this continued unjustified penalising of large companies for minor offences, against an excellent background of safety, may lead to many of the country’s leading businesses moving their operations elsewhere.
Following the implementation of the Guideline, even where a court assesses a person’s culpability to be “low” there is the real risk of a custodial sentence being imposed. The harsh reality is that even where the failings of an individual are found to be minor, or significant efforts were made to address the risk, an individual could still end up behind bars.
Over the last 12 months there have been far fewer prosecutions against individuals than organisations and therefore it is more difficult to map any trends in terms of the way that the court are applying the Guideline and there is limited statistical data available. However, in our view the courts are continuing to show a reluctance to impose immediate custodial sentences in all but the most serious of cases.
Therefore, whilst the effects of the Guideline have so far been felt the most by large companies facing much higher and more consistent fines for health and safety breaches, longer term concerns remain with those who are facing prosecutions in their personal capacity.
We are monitoring the cases going through the court system at the moment to assess whether judges will become more willing to utilise their powers to imprison individuals in less serious cases.
Further commentary and a full assessment of the Guideline’s impact, plus a review of some of the key cases since the introduction of the Guideline is available here.