The new sentencing guidelines for health and safety offences and corporate manslaughter come into force from Monday 1 February 2016. So, what might this mean for practitioners and the organisations they advise? IOSH’s Head of Policy and Public Affairs, Richard Jones, explains…
Why is new sentencing guidance needed?
The new guidelines are intended to improve sentence consistency and help sentencers to deal appropriately with offences which previously only had piecemeal guidance (such as for non-fatal health and safety offences and those committed by individuals).
The new guidance was developed because the Sentencing Council was concerned that fines for corporate health and safety offences have, in the past, been criticised as too low relative to harm caused, culpability and, on occasions, means of offenders. The Council also wanted to ensure that health and safety sentencing would be consistent with the higher fines expected following the environmental offences guideline.
The new guidelines provide, for the first time, comprehensive guidelines for the most commonly sentenced health and safety offences. There’s a nine-step process and tables for each type of offence, with starting points and ranges and factors for courts to consider when adjusting and determining final sentences for different-sized organisations and for individuals. The process includes consideration of the culpability (blameworthiness) and the harm (risked and actual), together with an organisation’s turnover or equivalent (for corporate offences), any aggravating or mitigating factors, and potential sentence impact.
Directly linking sentences to turnover (which IOSH called for in 2010) and increased focus on harm-risked, as well as harm caused, are both new. The Council expects some higher fines for more serious offences by large organisations. For example, for large firms (turnover £50m and over) the starting point for health and safety offences with the highest culpability and harm is £4m (range £2.6-10m); and for the most serious corporate manslaughter cases, the starting point is £7.5m (range £4.8-20m).
How do the new guidelines work?
The new guidelines specify the range for each type of breach, with the ‘offence category’ reflecting seriousness (culpability and harm) and starting points and ranges for provisional sentences. There are category ranges for each size of organisation and also for offending individuals. The court will then consider aspects that may warrant adjustment of the sentence, including:
- Aggravating factors’ e.g. previous convictions, cost-cutting at the expense of safety, obstruction of justice, poor health and safety record or targeting vulnerable victims.
- Mitigating factors’ e.g. no previous convictions, evidence of steps taken voluntarily to remedy problem, a good health and safety record, effective health and safety procedures in place or self-reporting, cooperation and acceptance of responsibility.
There is then a review of the initial fine to decide if it is proportionate to the overall means of the offender (including profit margins) and whether it reflects the gravity of the offence, can deter further offending, and removes any financial gain. The intention is to achieve real economic impact and to alert management and shareholders of the need to comply.
What do practitioners need to do?
Responsible organisations should already be ensuring legal compliance on health and safety as a minimum and that they have adequate risk management in their operations. If there are failures or deficiencies, swift action should be taken to ensure safe and healthy working.
For those needing further incentive, the prospect and use of effective sentencing can help deter non-compliance and complement the strong legal and moral imperatives for good health and safety, adding to the business case. So, where appropriate, health and safety practitioners can use the introduction of these new guidelines as an additional prompt to organisations to review and improve the efficacy of their health and safety management arrangements and address any areas of weakness.
For example, in order to achieve good practice and prevention, organisations will want to ensure that they follow the ‘plan, do, check, act’ principles in HSE’s HSG65 and in Leading health and safety at work – INDG417, designed for directors, governors, trustees, officers and equivalents in the public, private and third sectors and all sizes of organisation.
Leadership from top management is viewed as increasingly important and is a specific element of the draft ISO 45001 occupational health and safety management system requirement standard expected later this year. This international standard emphasises the key role of those who direct and control organisations in leading a positive culture, as well as stressing the need to evaluate and understand compliance status.
The Sentencing Council is clear that sentencing for serious health and safety offences and corporate manslaughter should reflect the gravity of these offences. Also, that such offenders should have addressed the relevant failings in their health and safety management and prevention programmes before they are sentenced.
IOSH’s 2015 submission to the Sentencing Council anticipated that application of new sentencing guidelines could improve consistency and proportionality and lead to better informed sentencing decisions by those unfamiliar with the seriousness of health and safety offences. Also, that more effective sentencing would provide greater deterrence and increase awareness among stakeholders about the serious consequences of health and safety failure.
The new guidelines, with their focus on sentences that reflect different levels of harm-risked and culpability – together with consideration of turnover and profit margins – seek to ensure penalties have “real economic impact” and that “…it should not be cheaper to offend than to take the appropriate precautions.” As well as punishment and deterrence, the Council is seeking to influence future behaviour by removing any economic gains derived from offences. The overall thrust of the guidelines therefore, is a preventative one, emphasising the importance of effective health and safety risk management, of always ensuring that enough is being done, and of taking urgent action to fix the situation if it isn’t.
The guidelines are available at www.sentencingcouncil.org.uk and come into force 1 February 2016.