The year of the Sentencing Guidance – Era of the million pound fine

Published: 13 Dec 2016

2016 will be known as the year that has dramatically shaken up enforcement history in the UK. Since the inception of the Sentencing Guidelines in February, record fines have been issued with prison sentences for individuals also on the increase. Brexit has seen some organisations looking for ways to cut costs, we look to see if cutting the health and safety budget is a wise choice.

Since February 2016, 23 people have been issued prison sentences for health and safety and food safety offences, this equates to 3 individuals per month. In comparison, only 189 individuals were issued prison sentences between 1974 and end of January 2016, which equates to 5 individuals per year.

The implementation of the guidelines issued by the Sentencing Council has meant that for the first time magistrates and courts have a consistent means of passing sentences for corporate manslaughter, health and safety, food safety and hygiene offences in England and Wales.

As of February, magistrates and judges calculate fines primarily on the basis of a convicted firm’s turnover rather than profits or assets, with criteria also in place for passing of individual jail sentences. Levels of culpability, levels of harm presented by risk and turnover are the main criteria used for passing sentence. Mitigating circumstances such as companies previous health and safety record and failing or acting on advice can also affect the sentence.

The impact cannot be understated and has been felt across a myriad of industries. Recent prosecution case history has highlighted multi million pound fines being issued. We saw Alton Towers fined £5M for the roller coaster accident which resulted in serious and life changing injuries. Pinewood studios were fined £1,6M after actor Harrison Ford suffered a broken leg due to health and safety breaches on the set of the latest Starwars film.

The food industry has also felt repercussions, earlier this year the owner of an Indian restaurant was jailed for 6 years after serving a curry containing nuts which resulted in the death of a customer. The fast food chain Kentucky Fried Chicken was fined £100,000 after its Pontypool branch was found guilty of operating without hot water.

In recent prosecution news, supermarket giant Asda has been fined £664,000 after mouse droppings and an infestation of vermin was discovered in a west London store. The Park Royal branch of the chain was closed for 10 days in September last year when a customer launched a complaint after finding mouse droppings in a packet of bread rolls.

As previously reported significant fines imposed are based on the level of harm which is presented by risk rather than actual harm having occurred. This was very much the case in point in the recent prosecution involving G4S Cash Solutions being issued a £1,8M fine. After an employee contracted Legionnaires diseases, the HSE conducted an investigation and could not establish a link to the source of the infection to G4S. Significant failings were however uncovered in respect of management of Legionella and water systems, including inadequate policies, monitoring and lack of training. Failure to heed advice of their very own internal consultant also contributed to towards the size of the fine. Had G4S not entered a guilty plea, the fine would have been almost doubled.

Common failings noted from the majority of cases sentenced since February 2016 include failure to have in place and implement suitable and sufficient risk assessments, following company health and safety policy, implementation of safe systems of work and providing adequate training of staff. Breaches in food safety legislation has also resulted in massive fines being issued in the hospitality industry.

Going forward, it would appear that the trend of passing record fines and prison sentences will remain. Only time will tell if the objective of the sentencing guidance will act as the ultimate deterrent for companies to breach food and health and safety this space.

In this time of uncertainty ask yourself if your business can afford to cut its health and safety budget. In doing so would you still be confident that you are legally compliant? Breaches in health and safety can be very costly and can adversely affect the reputation of your business, tendering for new work and attracting or retaining staff. The cost of litigation must also not be taken lightly.

To ensure that your business meets legal compliance, contact CSC today and our team of experts will be happy to provide assistance.