The Sentencing Council has issued guidelines for sentencing corporate manslaughter, health and safety and food safety and hygiene offences which will come into effect in February 2016. By and large this will be the most dramatic shake up in enforcement history.
The publication of the guidelines ensures that for the first time, there will be comprehensive sentencing guidelines covering the most commonly sentenced health and safety offences and food safety offences in England and Wales.
Criteria which will be used by the courts to determine the sentencing of offences are as follows:
1) The level of capability will need to be established and is broken down into 4 main categories: Very High (deliberate or flagrant breach of law), High (falling short of the appropriate standard), Medium (fell below high and low categories) and low (evidence that failings were minor and not systemic).
2) The level of harm risked would need to be compared against the seriousness of the risk level (i.e. Level A, Level B and Level C). Level A being the most serious category which has resulted in death, e.g. working at heights.
3) The organizational category of the company based on turnover will need to be established for sentencing purposes with ranges predetermined for very large companies to micro companies:
Very large companies will be classified as a turnover > £50 Million
Micro Companies will be classified as having a turnover < £2 Million
Taking all the criteria into account, a large company could be fined between £2,6 M- £10 M for a breach that is classified as high culpability/Harm. Similarly, a large company could be fined in the region of £4,5 M to £20 M for Corporate Manslaughter convictions.
It is important to note that individuals can also be sentenced where custody thresholds will be set for neglect, e.g. 18 month custodial sentences starting point for convictions of very high culpability/harm in health and safety breaches. Similar sentencing criteria will be employed for serious food safety offences.
4) Inflationary factors which the courts may take into account for increasing fines will be a) If there was a risk of death and b) was more than one member of the public or work force exposed to the risk?
Practical legal tips to reduce exposure to prosecution:
Action to take before an accident/incident has occurs -
1) Invest in Senior Executive training to understand the importance of promoting health and safety from the top structure, downwards. Senior executives can be guilty of offenses of neglect under s37 HSWA, especially if they are not viewed as being as proactive as they ought to have been. In addition, it is also important that senior management understand the implications of Corporate Manslaughter offences and how poor management attitudes and failings can attribute to a guilty verdict. It is also strongly recommended that senior executives understand the relevance of Institute of Directors Guidance (i.e. the importance of strong, active leadership from the top with any health and safety breaches to addressed with immediate effect).
2) It is essential that a Health and Safety Legal review of documentation take place. Focus needs to be placed on the reviewing of health and safety policy statement and roles and responsibilities documentation.
3) Having an Accident Response Protocol will be pivotal and it is strongly recommended that a procedure be put in place to obtain legal privilege over incident investigation reports and to support employee interviews.
4) Understand and Avoiding Aggravating and Culpability Features: The new sentencing guidelines will focus on failure/s to act on previous warnings or advice from Local Authority which could constitute deliberate, repeated or long standing breaches. In essence, those cases where you know something is wrong but you haven’t fixed them.
Action to take after an accident/incident has occurred:
1) In addition to making sure that the site is secure and gathering of relevant documentation, it is vital that insurers and Health and Safety Regulatory lawyers be consulted in relation to health and safety matters.
2) If legitimate and done in the specified time scales, inappropriate enforcement notices can be challenged and possibly cancelled (i.e Prohibition Notices and Improvement Notices). It is important to note that accepting of Fees of Intervention could be strongly viewed as acceptance of Liability
3) It is strongly recommended that Legal Professional Privilege (LLP) to be sought over incident/accident investigation reports which would give the organisation control over the flow of information, i.e. what and when to disclose. It is important to note that s.20 (8) HSWA 1974 states that privileged documents do not have to be disclosed to third parties.
4) Support members of staff for HSE/police interviews: It is important to understand the role of the HSE and police following a serious accident/incident. Interviews can either be in the form of a) Without Caution (i.e. compulsory, voluntary, informal) or b) Under Caution (normally PACE interviews which are seen as the worst case scenario where the interviewee has the right to legal representation – normally where serious health and safety breaches have occurred).
It is important to note that nothing said during the interviews is off the record and therefore it is important that the correct support be provided.
For additional information regarding the sentencing guidelines, the following link from the Sentencing Council has been attached below: