Is the fear of prosecution about to change?

New guidelines have recently been issued by the Sentencing Council in relation to health and safety offences, including corporate manslaughter and food safety.

The new guidelines are likely to lead to significantly higher penalties being imposed, particularly for larger organisations, who could face fines of up to £10million for health and safety offences and £20m for corporate manslaughter. The guidelines will apply to all organisations and individuals sentenced on or after 1 February 2016, regardless of the date of the offence.

Previous guidelines did exist, which provided that fines should seldom be less than £500,000 for corporate manslaughter and £100,000 for health and safety offences causing death. They did not however cover other (non-fatal) health and safety offences and only set limited factors to assist courts when imposing sentences. Having effective training programmes in place is now vital.

The Crown Court has always been able to impose unlimited fines for such offences. Magistrates' courts, which were previously limited to £5,000 or £20,000, can now impose unlimited fines for offences committed on or after 12 March 2015 (meaning that the £5,000 and £20,000 maximum penalties set out in the Heath and Safety (Offences) Act 2008 no longer apply). This, along with new Allocation Guidelines which provide that cases should be dealt with in the Magistrates' court unless there are unusual legal, procedural or factual complexities, are likely to mean that Magistrates' are sentencing more health and safety cases. This is one of a number of reasons that further guidelines were said to be required, along with the fact that fines have generally been perceived as being too low and inconsistent.

The new guidelines set a prescriptive way in which courts must now determine the level of sentence imposed, whether financial or, for individuals, custodial:

 1.    Establish the risk of harm (rather than actual harm) - for health and safety offences, harm is split into 4 categories. Category 1 will apply where there has been a “high likelihood" of death, physical or mental impairment resulting in lifelong dependency or significantly reduced life expectancy.
 2.    Establish the level of culpability - also split into 4 categories: ‘very high’ (a “deliberate breach or flagrant disregard for the law”); ‘High’ (serious / systemic failure to address risk, including to follow recognised standards in the industry, or ignoring concerns raised); ‘Medium’ (where systems are not sufficiently adhered to or implemented) and ‘Low’ (where there was no warning or suggestion of risk, or significant efforts to address the risk that were inadequate).
 3.    Assess the defendant's turnover - This will refer the court to one of four specific tables detailing starting points and ranges for sentences depending on the organisation’s size. The guidelines note that for "very large organisations" (turnover very greatly exceeds £50 million), it may be necessary to move outside the suggested range. Courts have previously said that very large companies who are involved in cases of serious [environmental] crime could face fines of up to 100% of the company’s pre-tax net profits – even if this results in fines of £100+ million.
 4.    Consider aggravating and mitigating features - Aggravating features include previous convictions, cost-cutting at the expense of safety, poor health and safety record and targeting vulnerable victims. Mitigating features, which should reduce sentences, include evidence of steps taken to remedy problems, effective health and safety procedures, self-reporting, co-operation and acceptance of responsibility. Having considered these factors, it may be appropriate to move outside the identified category range.
 5.    Consider any wider impacts of the fine within the organisation or on innocent third parties.
 6.    Reduction for guilty plea – usually one third if the guilty plea was entered at the earliest possible opportunity.

For corporate manslaughter, the guidelines acknowledge that, by definition, the culpability and harm will be very serious and so provide that the courts must identify offence category A (high level of harm or culpability) or B. Courts should considering a number of factors including how far short of the appropriate standard the offender fell (with inadequacy of training, supervision and reporting arrangements as factors to take into account) and how common this kind of breach was within this organisation.

The Sentencing Council has now made it clear that measures such as adhering to standards, having effective training programmes in place and ensuring high levels of competence among key personnel will not only help to avoid prosecution, but could also help to avoid a significant and damaging financial penalty or a custodial sentence. The guidelines help bring home to organisations that failing to comply with the law and putting people at risk will have serious implications.