The long awaited Sentencing Council’s guidelines for health and safety offences were published on 3 November 2015 and came into effect on 1st February 2016.
Large companies in England and Wales can expect fines of around £10 million for the most serious breaches of health and safety law when now that new sentencing guidelines have come into force..
Courts are now required to first assess the overall seriousness of the offence based on the offender’s culpability and the risk of serious harm, regardless of whether any harm was in fact caused. The guideline then sets a starting point and a range of possible fines based on the seriousness of the offence. Different starting points and ranges apply depending on the size of the organisation, based on turnover or the equivalent. Fines could exceed £10m for serious health and safety breaches or £20m in corporate manslaughter cases, and even more for very large companies.
The guideline also includes a list of mitigating and aggravating factors that the courts can take into account when setting the level of fine. Mitigating factors may include where a business has no previous convictions, has taken steps to remedy the wrong and has demonstrated a particularly high level of cooperation with the investigation; while aggravating factors may include a history of relevant offences or where the offence was committed for financial gain. Courts will also have to consider whether there are any other factors justifying an adjustment, but whether the fine will put the offender out of business may be an acceptable consequence in some bad cases.
Individual company directors found guilty of “consent, connivance or neglect” in relation to the offence will face potentially unlimited fines and prison sentences of up to two years, according to the guideline.
Organisations are required to submit detailed financial information including turnover figures, pre-tax profit, director remuneration, pension provision, assets and debt exposure for the past three years (including where appropriate that of any associated organisation, which may lead to an examination of any group structure). Failure to produce required financial information, or the production of insufficient or unreliable financial information is likely to attract an adverse reaction. The court will form its own conclusions from the circumstances and information available, including that the offender is able to pay any fine.
Companies facing substantial fines for such offences may also have to report such matters in their annual accounts with inevitable reputational damage as a consequence.
Of perhaps greater personal significance for directors and senior managers is the prospect of an unlimited fine or a custodial sentence if they are found guilty of the consent, connivance or neglect in the commission of the offence by the company. The thresholds for custodial sentences for individuals would suggest a far greater likelihood of imprisonment for the most serious breaches.
Convictions for corporate manslaughter demand a number of evidential hurdles to be satisfied to secure a conviction. By contrast, health and safety offences are far easier to prosecute. If real impact can be achieved via prosecution, conviction and sentencing for such breaches, prosecutors may be more inclined to take that route.
Two things, in particular, are brought into sharp focus in the guidelines and demand board attention now:
- The requirement for a proactive, coordinated and fully supported approach to health and safety is crucial. The guidelines make it clear that persistent offenders or those who adopt a cowboy approach to health and safety will face harsher fines, while single offenders with an otherwise exemplary record with an enthusiastic, forward thinking and structured approach to compliance which is fully endorsed from the top down, are likely to be dealt with in a more lenient manner, although the fine must still be large enough to be a punishment and deterrent.
- Given the stark difference between the current and future regimes, many of those currently subject to proceedings have been well advised to enter early guilty pleas in appropriate cases in order to expedite their cases (the guidelines will apply to sentencing after 1 February 2016, regardless of when the offence was committed). Sentencing under the current regime may be preferable.
The message is clear – regulatory authorities expect health and safety to remain a key corporate priority. Directors must ensure that it is at the top of their agenda.
To view more information on the new sentencing guidelines please click the link below:
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