Significant changes to the sentencing process have come into force allowing for the imposition of unlimited fines for Health & Safety offences.
The mechanics of the new sentencing process
The Court will make an assessment of the culpability of the offender and harm caused based on the facts of the case and submissions made in mitigation. As with all sentencing guidelines there is effectively a ‘sliding scale’ measuring both of these factors and in general terms, the higher the bracket then the heavier the sentence.
There are four classes of culpability ranging from ‘Low’ to ‘Very High’ where there is a “deliberate” breach of the law or “flagrant disregard” for it. If the health and safety failings are found to be minor and the case revolves around an isolated incident then the Court is more likely to consider that the offender’s culpability falls into the lowest category of culpability. This may also be the case where a business has made significant efforts to address the particular risk at issue but the efforts were inadequate on this occasion or where there were no circumstances to give an indication that there was a risk to health and safety.
Alternatively, there are a number of factors which a Court may frown upon and considers an offending business to have fallen far short of what would be an appropriate standard. It follows that the following may represent a higher degree of culpability and demonstrates serious flaws or failures within the organisation:
Allowing breaches to continue over a long period of time
Where there are prior incidents where risks to health and safety have been exposed but not acted upon and appropriate changes have not been made
Concerns of employees or other persons have been ignored
Measures to ensure that established and recognised industry standards are met have not been implemented.
The assessment of ‘harm’ is a slightly more complicated consideration for the Court in that there is a matrix to follow with the axes being formed by levels of likelihood of harm and the seriousness of harm risked. In terms of the latter, there are three levels of seriousness:
Level A: Death, significantly reduced life expectancy or injury resulting in lifelong dependency on a third party for basic needs
Level B: A progressive, permanent or irreversible condition or an injury with a substantial and long term effect on someone’s ability to carry out normal day to day activities
Level C: Vaguely referred to as “all other cases not falling within Level A or Level B.
Levels A, B and C are then evaluated against low, medium, and high likelihood of the harm arising. The result is different ‘harm categories’. For example, if the most serious level of harm (A) is risked and it is highly likely that the harm arises then the defendant organisation finds itself in ‘harm category 1’. If the least serious harm (C) is risked and the likelihood of harm is low or even medium then the defendant organisation will find itself in ‘harm category 4’.
The culpability and harm categories identified will then give the Court quite a precise basis for sentence. Each level of culpability whether low, medium, high or very high has within it all four ‘harm categories’. These effectively form bands which the Court will look to apply. Helpfully, the resulting 16 bands are then considered against turnover.
Offenders are expected to provide comprehensive accounts for the previous three years to allow the Court to make an accurate assessment of an organisation’s financial status. Without that information being provided the Court is entitled to draw reasonable inferences on means from the evidence that has been heard in the case.
Let us assume that a large PLC with over £50 million turnover has blatantly or “flagrantly” ignored its health and safety obligations and this has led to the death of an employee under circumstances where the likelihood of harm was high and therefore easily foreseeable.
The new guidelines would place this as a very high culpability matter and using the harm matrix, a “harm category 1” situation. The company could face a fine between £2.6 to £10 million. The most serious penalty ranges for the other categories of organisation are as follows:
Medium organisations (turnover between £10 million and £50 million): Fines between £1 million and £4 million
Small organisations (turnover between £2 million and £10 million): Fines between £300,000 and £1.6 million
Micro organisations (turnover of up to £2 million): Fines between £150,000 and £450,000.
Disturbingly for the larger organisations, there is a black box within the guidelines that says where an offending organisation’s turnover or equivalent very greatly exceeds the threshold for large organisations (i.e. is significantly higher than £50 million)… “It may be necessary to move outside the suggested range to achieve a proportionate sentence”. This effectively gives the Courts carte blanche to impose whatever figure it sees fit, depending upon the size of the business. A fine of tens of millions of pounds is therefore possible.
General principles however state that the fine must reflect the seriousness of the offence and the extent to which the offender fell below the required standard, taking into account the financial circumstances of the offender. The fine should be fair and proportionate and meet the objectives of punishment, deterrence and the removal of any gain obtained through cutting corners. In serious cases, if the fine would serve to put the organisation out of business then “this may be an acceptable consequence”.
This represents a further strengthening of the application of health and safety law. It is certainly the most significant change since the Health and Safety (Offences Act) 2008 that was introduced to allow the Magistrates’ Courts to resolve a greater number of cases and to impose sentences which reflected the seriousness of the offences and would therefore encourage compliance.
Fines of up to £20,000 could then be imposed in relation to an extended range of offences and imprisonment could also be imposed on individuals where considered necessary. These powers were not to be applied retrospectively which is another difference from the present changes.
Individuals can still be imprisoned for the more serious Health and Safety breaches where there is clear individual culpability and ‘connivance’. The new categories described above also apply but little has changed in terms of application. The maximum sentence at the Crown Court remains a two year custodial sentence and six months at the Magistrates’ Court.
Compliance with Health and Safety legislation therefore takes on even greater significance now. The perils of falling foul of the law can now be even more far reaching and costly.