One year on: the impact of the Sentencing Council’s guidelines for health and safety offences
This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.
Summary and implications
The Sentencing Council’s definitive guideline on health and safety offences that came into force one year ago on 1 February 2016 compels the courts in England and Wales to impose more stringent penalties than those under the 2010 guidelines.
In the last 12 months there have been an unprecedented number of fines of £1m or more.
The impact has been most pronounced on medium-sized and large organisations, and there are clear increases in the severity of fines for incidents that caused little or no harm to workers.
The guidelines
The aim of the 2016 guidelines was to achieve a level of proportionality in sentencing and some uniformity across England and Wales, rather than increase the level of fines for offences.
The guidelines apply to all offences that are sentenced from the date they came into force, including those that were committed before 1 February 2016. The courts are required to assess the overall seriousness of the offence based on the offender’s culpability and the risk of serious harm. The guidelines apply regardless of whether any harm was actually caused.
The level of culpability comes down to the extent to which the standards required by law were not met and the level of harm is assessed by the level of risk and the seriousness of any injury that may have resulted from the offence. The likelihood of the harm arising is also considered. The guidelines distinguish organisations between micro, small, medium and large according to their turnover which determines the starting point for the fine.
Trends
The sentencing guidelines were published at the beginning of November 2015 and the courts appeared to be imposing steadily increasing fines on companies in the run-up to the guidelines being implemented, there were five fines of £1m or over throughout December 2015 and January 2016.
Continuing this trend, in the past 12 months there have been 116 fines of at least £100,000. Of these fines, 21 have been at least £1m with the largest fine being £5m.
The guidelines have clearly greatly increased the average level of fine. Now that the fines are largely based on turnover, we are confident that it will continue to be commonplace to see huge fines for multi-million pound companies where there have been non-fatal incidents as well as fatal incidents.
In addition to this, individual offenders can now expect more jail time.
Recommended action
Companies should make every effort to meet the standards required. Doing so will not only ensure the safety of people, but also reduce the risk of enforcement. Where enforcement action is taken, then it will be central to mitigating the outcome. All systems and supporting documentation should be kept available so that it can be easily evidenced if required.
If this article is of interest to you and you would like to discuss our research on sentencing trends further then please contact us. We are able to assist you with a review of your business practices and we can show you the protection options available to your organisation and help you to manage your exposure to risk.
