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New Sentencing Council Guidelines

Updated: Feb 17

The Sentencing Council has recently released new sentencing guidelines relating to health and safety, corporate manslaughter and food safety/hygiene cases. The guidelines came into force on February 1st 2016 and are expected to be considerably tougher than the current guidelines.

The most serious breaches of health and safety law can be punished with fines that could be as high as £10 million. This could mean that businesses whose cases are currently before the courts may wish to plead guilty in order to have their cases resolved before the new (and less beneficial) sentencing system comes into force.

The guidelines detail six steps that the courts are expected to take when considering the sentences that they can pass on convicted businesses.

Step One

This step involves working out the category of offence, which the guidelines state is a combination of culpability and harm.

Culpability is divided into four categories:

  • Very high

  • High

  • Medium

  • Low

The level of harm is calculated by the interaction between the seriousness of harm risked and the likelihood of that harm occurring.

The seriousness of harm can be either:

Level A

  • Death

  • Physical or mental impairment resulting in lifelong dependency on third party care for basic needs

  • Significantly reduced life expectancy

Level B

  • Physical or mental impairment, not amounting to Level A, which has a substantial and long-term effect on the sufferer’s ability to carry out normal day-to-day activities or on their ability to return to work

  • A progressive, permanent or irreversible condition

Level C

  • all harm that does not fall into categories A or B

The likelihood of harm can be either high, medium or low.

The court then investigates whether anybody was exposed to the risk of harm by the offence and whether the offence was a significant cause of actual harm. It should be noted that the offence is in creating a risk of harm, not actual harm. Applicable factors will likely increase the sentence.

Step Two

The guidance then sets out a range of fines that can be imposed, depending on the seriousness of the offence. The court will focus on the organisation’s turnover and aggravating/mitigating features of the case.

The information to be considered by the court will vary depending on the type of organisation being sentenced:

For companies, annual accounts for the previous three years, with attention paid to

  • turnover,

  • profit before tax,

  • directors’ remuneration,

  • loan accounts and pension provision

  • assets as disclosed by the balance sheet.

For partnerships, the court will consider annual accounts. Particular attention will be paid to:

  • turnover,

  • profit before tax,

  • partners’ drawings,

  • loan accounts,

  • pension provision and

  • assets.

For local authorities, fire authorities and similar public bodies which do not have a turnover figure as such, the Annual Revenue Budget (ARB) can be used instead as it is the best way to judge the size of the organisation.

For charities, the court will look at their annual audited accounts.

Factors increasing/decreasing seriousness

The statutory aggravating factor will be whether there are any previous convictions.

Other aggravating factors can include whether:

  • illegal activity was deliberately concealed;

  • documentation, licences or other official paperwork were falsified;

  • any cost-cutting affected safety;

  • the business deliberately avoided obtaining licences in order to avoid official scrutiny;

  • vulnerable victims were targeted;

  • a court order was breached when the activity was undertaken;

  • justice was obstructed;

  • the business had a poor health and safety record.

Factors reducing seriousness or reflecting mitigation

  • No previous convictions or no relevant/recent convictions

  • Evidence of steps taken voluntarily to remedy problem

  • Higher level of co-operation with the investigation than would be expected

  • Good health and safety record

  • Effective health and safety procedures in place

  • Self-reporting, co-operation and acceptance of responsibility

Step Three

The court then has to verify that the proposed fine is proportionate to the ‘overall means of the offender’. The fine must have a real economic effect which will motivate management and shareholders to comply with the relevant legislation.

In finalising the sentence, the court should take into account the following factors:

  • The profitability of an organisation

  • Any economic benefit derived from the offence

  • Whether the fine will have the effect of putting the offender out of business.

If an individual company director is found guilty of “consent, connivance or neglect” regarding the offence, they could face fines that are potentially unlimited and a prison sentence of up to two years.

Step Four

The court will take into account other factors that may lead to the proposed fines being adjusted. These could include:

  • does the fine mean that the offender will be unable to make restitution to victims?

  • does the fine mean that the offender will not be able to afford to make improvements to the situation that caused the offence in the first place?

  • will the fine affect employment of staff and/or service to customers and the local economy?

Step Five

The court will look at any other factors that may cause the sentence to be reduced; for example, assisting the prosecution by co-operating with an investigation.

Step Six

Account should be taken by the court of any reduction to be made if the offender has pleaded guilty.

To access the full guidelines, follow this link

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