Although sentencing guidelines currently exist in relation to corporate manslaughter and health and safety offences resulting in a death, there are no current guidelines to the UK courts in relation to sentencing non-fatal health and safety offences or food safety offences. The guidelines, produced by the Sentencing Council (SC), are intended to fill that gap and are viewed as particularly important due to the infrequency that the courts deal with these types of offences. They would replace the previous guidelines on corporate manslaughter and health and safety offences resulting in a death and provide a much more detailed approach to sentencing.
The guidelines are split into separate sections for health and safety (organisations), health and safety (individuals), corporate manslaughter, food safety / hygiene (organisations) and food safety / hygiene (individuals). Each section has common factors:
- They start with a requirement to establish a category, looking at harm (considering both actual harm and the risk of harm) and culpability. They note that for corporate manslaughter, the harm and culpability will always be very serious.
- They then provide a starting point for the sentence, based on the size of the organisation and state that for “very large organisations”, it may be necessary to move outside the suggested range to achieve a proportionate sentence. As an example, for large organisations (with turnovers of £50million and above), the starting point for a very high culpability, harm level 1 health and safety offence is £4million, with a range of £2.6million-£10million. This is much higher than the previous guidelines on health and safety offences which cause death which provided that “the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more”.
- This is followed by requirements to consider a number of factors that would increase or decrease the fine from the starting point, including any economic financial gain, which may of course be difficult to calculate, the financial means of the offender and a reduction for providing assistance to the prosecution and entering a guilty plea.
The intention and indeed the expectation is that fines for both companies and individuals will increase in relation to the more serious offences so that these become more proportionate to the seriousness of the offence. The offenders financial means will however still be taken into account (for companies, using turnover as the initial measure). Sentences for less serious offences are unlikely to change as they are already viewed as proportionate.
A consultation opened in relation to the draft sentencing guidelines on 13th November 2014 and will remain open until 18th February 2015. The most important question in the consultation is arguably whether individuals should face prison sentences if their actions were merely negligent (rather than deliberate or reckless). SC member Michael Caplan QC said: “This is a consultation: we are interested in hearing feedback on our proposals so we can develop sentences which people understand and have confidence in.”
The structure of the guidelines is in line with what was expected as it is similar to that in the sentencing guidelines for environmental offences, effective from 1 July 2014. These were recently followed by Reading Crown Court, imposing a fine of £250,000 on Thames Water following a guilty plea to breaching regulation 38(1) of the Environmental Permitting (England and Wales) Regulations 2010 after untreated sewage entered Chase Brook due to the pumps at a nearby sewage pumping station becoming blocked. The Court found culpability of negligence and harm of category 3, which provided a starting point of £60,000 and a range of £25,000-£150,000. These figures are for large organisations (turnover of £50million and above), but the environmental guidelines also contain the same provision for “very large organisations” discussed above.
It will be interesting to see what changes are made to the final guidelines following the consultation and in particular whether there are any changes to the suggested level of fines and whether the focus on linking fines to turnover will remain.