Sentencing Guidelines - one year on

Notable among them are:

• There have been more £1m+ fines in the past 12 months than in the previous 20 years combined
• Average fine per offence has increased 102% according to last year's HSE report covering the year to April, with this figure set to rise once a full year's data is available
• The largest fine for a breach of health and safety imposed in the year was £5m
• The Guideline coincides with increased sentencing powers for Magistrates' Courts, which are now able to impose unlimited fines (imposing a £1m penalty in one recent case)
• 95% of health and safety cases prosecuted result in convictions while 84% of HSE initiated cases carry a financial penalty – according to last year's HSE report covering the year to end of March
• Cases against directors have tripled in the year to 31 March with 46 cases.  Just one employee was prosecuted in that period.

Commenting on the first anniversary of the introduction of the guidelines, Chris Morrison, partner and national head of safety, health and environmental regulatory at Clyde & Co commented: “One million pounds is no longer a figure beyond which the Courts will trespass only in the case of a public disaster. Since the new guideline was introduced, we have seen more penalties exceed this level than in the previous 20 years combined. Cases don’t have to lead to fatalities in order for fines to reach the multi millions. Whilst big businesses are attracting the headline grabbing penalties, those in the SME category are seeing far larger proportions of their turnover removed in the fines handed down.

“The intensified focus on directors rather than employees makes the increased threat of prosecution a serious issue for those in the boardroom at both corporate and individual levels. Prosecutions are almost always successful.”

Looking ahead to 2017, Clyde & Co predicts:

• There will be a significant increase in the average fine per offence when the HSE issues its annual statistics in November. The figure had already risen 102% when the year to 31 March statistics were published
• The first six months of the new guideline yielded an increase of 89% in fines imposed in the construction sector. A similar pattern is likely across all sectors
• Fines for non-fatal injuries will continue to be very significant as courts focus on the harm "risked" as well as that eventually caused
• Multi-million pound fines have been running at the rate of one per fortnight in 2017 – a trend which may continue through the year.

Clyde & Co's safety, health and environmental regulatory head of compliance, Rhian Greaves, added: “2017 will undoubtedly see more significant fines and potentially a greater emphasis on suspended and custodial sentences for individuals too. However, we are already seeing the HSE and industry focusing increasingly on putting the "health" back into health and safety, which is to be welcomed.

"It will be interesting to see if this translates into enforcement action in due course. There are also interesting working arrangements for the regulator to grapple with, not least the burgeoning "gig economy", now favoured in many industry sectors. These cases may take some time to work through the system but inevitably will do so.”

www.clydeco.com