Legal spotlight - June 2019

IF THERE remained any doubt that the health and safety sentencing guideline has led to significant increases in fines, that should have been finally dispelled with the recent publication of the Sentencing Council's report "Assessing the impact and implementation of the Sentencing Council’s Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline" ("the impact assessment"), which concluded that:-

"For health and safety offences, there has been a considerable increase in fine amounts for larger organisations since the guideline came into force…",

with fines for smaller organisations on the increase too.

Under the current guideline for health and safety offences, the sentencing court is required to assess the overall seriousness of the offence (the offence category), by reference to the degree of culpability and risk of harm, as opposed to actual harm caused. The combination of these two factors determines the initial harm category, which in turn gives a starting point and range of possible fines, depending on the turnover of the offender. Whilst more complex than the approach in other Sentencing Council guidelines the approach does not appear to have caused difficulties for sentencers, who are routinely considering both aspects, with ‘Level A: Death’ the most commonly cited risk factor, with likelihood mostly either medium or high. Prior concerns that the harm model might be too subjective, appear to have proved unfounded too, with the sample assessed all found to be correct, according to the impact assessment.

All this means that sentencing courts appear to be generally applying the guideline correctly - with five fines of over a £million imposed already this year (January - March 2019), the highest at almost £3million, and fifteen imposed last year, organisations must take note. Since its inception in February 2016, the impact of the sentencing guideline has been widely publicised and its impact felt across all sectors as fines once regarded as exceptional and reserved for the most significant disasters involving multiple fatalities, such as train derailments, now the norm for the largest organisations, with a similar escalation in fines for smaller companies. 

Whilst most predicted correctly that increased fines would result from the new guidelines, their commencement also fuelled concerns that they would bring with them increased appeals but according to the impact assessment this does not appear to be the case.

To be successful on appeal against sentence the organisation must show that the fine imposed was "manifestly excessive". An appeal court will normally defer to the sentencing court's assessment of the evidence heard before it, interfering only where necessary to avoid an injustice. With sentence under the guidelines imposed only after a detailed nine step process - intended to increase consistency and transparency - has been completed, is there really any scope for appeal when the axe falls?

Whilst there have been some high profile success stories on appeal those successes tend to be very fact specific and to turn on technicalities, providing little comfort for organisations awaiting sentence. In the Whirlpool appeal, for example, although the fine was reduced from £700,000 to £300,000 on appeal, the appeal court was at pains to make it clear that the successful appeal should not be seen as "alter[ing] the policy in this court in recent times ... of ensuring that organisations are made to pay fines that are properly proportionate to their means". 

More recently, Faltec Europe Limited successfully appealed a total fine of £1.6million for three health and safety offences, two of which related to an outbreak of Legionnaire's disease which affected five people, and the third of which related to an explosion in a flocking machine which injured an employee. The appeal court reduced the £800,000 fine for the legionnaire's outbreak to £380,000, it did so on the basis that

• available scientific evidence showed that the sentencing court's assessment of the harm category had been incorrect, emphasising that likelihood of harm "ought not to be divorced from the reality of the scientific evidence,"and

• that whilst the sentencing guideline allows a court to considermoving up a harm category or within the category range where the offence exposed a significant number to the risk of harm or was a significant cause of actual harm that was permissive rather than obligatory with bothsubject to the caveat that the court should not move up a harm category if actual harm was caused but to a lesser degree than the harm that was risked. 

Interestingly, however, the £800,000 fine for the explosion was confirmed on appeal. Some small comfort then to an organisation facing sentence – but only if it can bring itself into the same narrow category of case. 

Large fines for small and medium-sized companies and very large fines for large and very large companies are here to stay and the Court of Appeal has signified that it will be slow to interfere where the guideline has been properly followed, which the impact assessment suggests is generally the case. Health and safety must be a priority and if an appeal is considered, specialist advice should be sought to avoid what at the end of the day may amount to no more than additional adverse publicity and increased legal costs. Better still is proper preparation and planning for the sentencing hearing itself which is likely to yield the best result possible, save for any fundamental misapplication of the guidelines or the law by the sentencing judge.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com

Tel:0121 260 4005