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BSC Conf Theatre - Neal Stone

09 April 2019

Sentencing Council overly optimistic about impact of H&S offences guideline

Despite the recent assertion by the Sentencing Council that sentencing for health and safety offences is reflecting the seriousness of offences, the general policy objectives of the 2016 guideline are manifestly not being achieved. 

This is according to former British Safety Council (BSC) policy advisor Neal Stone, whose concerns about the true impact of the guideline were largely backed up by the audience in the BSC Conference Theatre at the Heath & Safety Event in the NEC this morning (9 April).

Referring to the publication by the Sentencing Council last week of its impact assessment for health and safety offences, corporate manslaughter and food safety and hygiene offences for England and Wales, which came into force three years ago, Neal explained: “This is a quantitative review. It looked at the fines over the last three years to work out the average, but it doesn’t say anything about whether judges and magistrates are getting it right. And I don’t think they are. They are not sufficiently equipped with the skills and knowledge to get it right.”

By way of illustration, he put three recent cases to the audience and asked what they thought the fines should have been. First up was a small satellite-dish installation firm with assets of £103,000. It pleaded guilty to a breach of the Work at Height Regulations 2005. Neal offered the audience the following fine options: £1,200, £2,600, £6,500, £12,400 or £24,500. The majority of the audience went for £12,400 but, in fact, the firm was fined just £2,600. Neal explained that the court held that the level of culpability and harm were low.

The audience was similarly wide of the mark in relation to the other two cases offered as examples by Neal. He said: “Judges and magistrates are finding the concepts of culpability and harm difficult to quantify. Look at the Court of Appeal decisions in the last year in relation to the likes of Tata Steel UK and Whirlpool UK. In the former case, they got the concept of harm wrong, with the result that the company’s fine of £1,985,000 was reduced to £1,450,000. In the latter, they got both harm and culpability wrong, and the fine was reduced by more than half – from £700,000 to £300,000. Something is obviously going wrong here!”

Nevertheless, the Sentencing Council assessment found that “sentencers did not experience any issues when using the guidelines”.

Calling on the audience again, Neal asked them to vote on whether the guideline had achieved the following policy objectives: to punish offenders; to reduce crime by deterring others; to reform/rehabilitate offenders; to protect the public; to ensure offenders provide reparation. The overwhelming response was that none of these has been achieved.

What is certain – and was borne out by the recent impact assessment – is that average fines have gone up (from £41,500 before the guideline came into force to £221,700), and the size of fines handed down to large organisations and to individuals have also both increased.

Neal concluded: “I feel that there are still too many organisations for whom health and safety legislation is anathema, and who feel and act like it doesn’t apply to them. Increased fines are not enough; they are only one way of getting people to comply. We also need more enforcement, better leadership and increased worker involvement.”