New sentencing guidelines for health and safety, corporate manslaughter and food safety and hygiene offences came into force in February 2016. In 2018, new guidelines were issued to judges which increased prison sentences for people convicted of gross negligence manslaughter in a workplace setting.
The sentencing guidelines followed a consultation in 2015 which drew in representatives from various associations including the Health and Safety Lawyers Association, DWF LLP, the Food Standards Agenct and various magistrates courts.
Prior to the publication of the sentencing guidelines, there was a definitive guidelines produced by the Sentencing Guidelines council for corporate manslaughter and health and safety offences that caused death, and very limited guidance for other health and safety and food safety offences.
The new sentencing guidelines provide judges with a starting point for fines for companies that commit health and safety offences.
Manslaughter sentence for gross negligence increased
In 2018, guidelines were been issued to judges to increase prison sentences for people convicted of gross negligence manslaughter in a workplace setting. The new guidelines were published by the Sentencing Council and mark the first time that comprehensive directions have been drawn up for the most serious and difficult cases of manslaughter. Under the guidelines, anyone convicted of manslaughter by gross negligence could face a prison sentence of up to 18 years.
Although the highest sentences are going to apply to individuals whose disregard of safety was motivated by cost saving and where there is a “blatant disregard for a very high risk of death”, for medium culpability cases the sentencing will still rise. Dr Simon Joyston-Bechal, Director at Turnstone Law, looks in detail what the changes could mean for you.
How are sentencing guidelines determined?
When it comes to the Definitive Guideline for Health and Safety Offence, most professionals are aware that things have changed, fines are much larger and judges have to follow a more formulaic approach than previously in setting the appropriate tariff when sentencing offenders. But, how are sentencing guidelines determined?
Paul Verrico, Partner at Eversheds Sutherland and Claire Watson, Associate at Eversheds Sutherland, look at the nine steps set out in the Sentencing Guideline and ask what a duty holder can do to prepare for a hearing.
What happened after Sentencing Guidelines were brought in?
More than a year has passed since the new Health and Safety Sentencing Guidelines were brought into force on 1 February 2016. Here, Kizzy Augustin and Laura Page from Pinsent Masons look at how the guidelines have already impacted some of the cases we have seen in court, including some high profile construction companies.
As widely predicted by the health and safety profession, we have seen a significant increase in fine levels for companies prosecuted for offences under the Health and Safety at Work Act 1974 and associated regulations. We now have a better indication of how large and very large companies are being sentenced in accordance to the new regime to analyse whether the Courts are applying these guidelines in a uniform fashion. This should help companies to identify how best to operate their businesses in order to reduce the impact of sentencing in the event of a prosecution or avoid prosecution altogether.
Structure of the sentencing guidelines
As we know, the guidelines are broken down into nine categories, each to be considered by the sentencing Court in turn.
The first three categories are, in our opinion, the most significant, as representations need to be made on behalf of the defendant to encourage the Court to either chose lower categories, which leads to more favourable sentencing options, or to encourage the Court to sentence at the bottom end of a range which could make a significant difference to the overall fine.
The first consideration of the Court in accordance with the guidelines is the level of culpability, where the range is from ‘very high’, which involves a deliberate breach or flagrant disregard for the law, to a ‘low’ level of culpability when significant efforts were made to address the risk (albeit inadequate on this occasion), there was no warning of the risk and the failings were minor and an isolated incident.
The next stage considered is the seriousness of harm ‘risked’ and the likelihood of that harm occurring. Health and Safety is based on ‘risk’ and the overarching duty for each dutyholder is to ensure, as far as is reasonably practicable, the health, safety and welfare of employees and non-employees. There is no requirement for a failure to comply with this duty to result in actual harm but is the potential for the risk of harm which arises from the alleged breach of duty. When the Guidelines consider the level of harm, they are concerned with the seriousness of harm ‘risked’ and if actual harm has been caused, this is used as an aggravating feature for the purposes of sentencing.
On considering the seriousness of harm risked (which is almost always going to be ‘death’ or serious physical impairment), the court must then consider the likelihood of the harm occurring, which assists in identifying the most appropriate harm category. The category can be adjusted if the alleged breach resulted in actual harm i.e. someone was actually injured and/ or a wide group of the public or employees were put at risk.
Once the levels of culpability and harm are established, the Court will then consider the means or ‘turnover’ of the defendant to identify the appropriate sentence ranges within the guidelines. For very large companies with a turnover of well over £50m, there is an ‘anything goes’ approach and health and safety professionals have been awaiting the first sentencing hearing of an identified ‘very large’ company to see how the Court would apply the Guidelines in those circumstances. We eagerly anticipated the sentencing of Merlin Attractions Operations Limited (“Alton Towers”), many of us considering this company to be one of those “very large” companies and which resulted in a £5million fine – a lot less than many of us were expecting. However, the judge decided that he could sentence this company proportionately within the ranges provided for large companies. Some might agree that this was a sensible decision for the judge to make in the circumstances, but others might think this was an opportunity for the judge to set a useful precedent for not only the appropriate level of fine, but for the definition of what a “very large” company is, which the judge wasted.
Looking at an example case in construction:
Defendant: Travis Perkins
Injury: Fatal Summary of facts: Customer was loading planks of wood onto the roof of his car. He was run over by a company vehicle and died from crushing injuries. The company’s turnover is £2.198 billion.
Medium culpability, high likelihood of harm.
Fine: £2million (Sentenced as a ‘large’ company because of extensive mitigation)
Example cases in other industries include:
Defendant: Tata Steel
Injury: Non fatal
Summary of facts: Two employees suffered injuries to their hands on 2 separate occasions: 1) a worker lost two thirds of his left hand and middle and ring fingers whilst trying to clear a blockage on a steel tube manufacturing line which had unsuitable guarding. 2) a worker lost part of his little finger when his left hand was caught in an inadequately guarded machine. Company’s turnover was £4.2bn but operating at a loss before tax of £306m.
Medium culpability (1st incident) and high culpability (2nd incident) / Harm Category 2
Fine: £1.98m (£185,000 for the first offence and £1.8m for the second offence)
Defendant: G4S cash solutions Ltd
Injury: Non fatal
Summary of facts: An employee had contracted legionella there was no evidence that this was caused by G4S’s premises. However, on investigation it had been found that the hot and cold water systems had been badly managed and there had been inadequate policies, monitoring and testing and inadequate training for staff. They had also failed to act on the advice of their own consultant.
Turnover: £240m with a profit of £43m
Fine: £1.8m (reduced for early guilty plea)
Many of the recent decisions show us that the decisions on culpability and harm levels might make a significant to the final fine level. For example, a large company with a very high culpability and harm category 1 (the highest), the sentencing range available to the court is £2.6m-£10m. If that is reduced to medium culpability and harm category 1, the range of fine available to the judge is reduced to £800,000- £3.25m and on the rare occasions that the breach is deemed low culpability / harm category 1, the range of fine available is £180,000-£700,000. It is really important for construction companies, executive boards and senior management teams to understand that steps can be taken in advance of a potential incident to ensure that culpability and harm levels are kept as low as possible and financial penalties that are imposed upon sentencing are not able to be covered by insurance. Many companies are now proactively investing in health and safety training and reviewing their policies and processes in order to avoid the potential effect of any criminal proceedings and/or convictions on the company and its individuals, who could find themselves at risk of imprisonment if their consent, connivance or neglect has led to a relevant breach of health and safety.
Further reading about Sentencing Guidelines
The trend towards individual liability
August 16, 2022
Jonathan Farry, Associate at Plexus Law, looks at how firms need to address their risk management procedures and health and safety policies to prevent individuals from being at the centre of claims. Read More
A guide to the Definitive Sentencing Guidelines
July 12, 2022
The Sentencing Guideline the court must follow if a person or a company has been convicted of an offensive relating to health and safety, were the subject of an illuminating presentation at the recent Safety and Health Expo. Read More
Modern slavery offences sentencing guidelines published
September 2, 2021
The Sentencing Council has published new sentencing guidelines for sentencing offenders convicted of modern slavery offences in England and Wales, following a consultation. Read More
April 2019 legislation update Q&A
September 3, 2019
Sentencing Council evaluation of impact of sentencing guidelines. Is there a duty to warn in health & safety criminal law? Can you delegate health & safety criminal law duties to contractors? This will all feature in our next legislation webinar on Monday 29 April. Read More
USDAW call on Government to do more to protect safety of retail workers
August 5, 2019
The Union of Shop Distributive and Allied Workers (Usdaw), retailers and their representative organisations urged for the Home Secretary and other Ministers to take more action towards abuse against retail workers. Read More
Maximising your mitigation, part 2
December 17, 2018
Eversheds Sutherland EHS Partner and Solicitor-Advocate Paul Verrico returns in to consider the ‘steps taken voluntarily to remedy a problem’ and whether a company’s reputation assists it in demonstrating a good health and safety record. Read More
Maximising your mitigation
November 28, 2018
Eversheds Sutherland EHS Partner and Solicitor-Advocate Paul Verrico considers the actions which a duty-holder can take following a serious incident in which failings have been identified, to influence the size of penalty imposed upon it. Read More
Alton Towers crash victims to sue
September 24, 2018
Merlin Entertainments, which owns Alton Towers, was fined £5m as a result of the Smiler rollercoaster crash in 2015, which left five people seriously injured. Now, two victims who each lost a leg in the crash are suing the park’s owners Read More
Legislation Update Q&A: PPE, GDPR, Sentencing Guidelines, Fee for intervention, Enforcement
August 28, 2018
Health and safety law and securing compliance remains to be an ever important and far reaching area, particularly now in light of unlimited and ever increasing fines. Following our recent Legislation Update webinar, Emma Evans, Associate of Pinsent Masons, answers some of your pressing questions. Read More
Legislation update Q&A: Legal privilege, Sentencing Guidelines, ISO 45001
August 20, 2018
Health and safety law and securing compliance remains to be an ever important and far reaching area, particularly now in light of unlimited and ever increasing fines. Following our recent Legislation Update webinar, Kizzy Augustin, Partner at Russell Cooke, answers some of your pressing questions. Read More