health and safety sentencing guideline

New Health and Safety Sentencing Guidelines

The Sentencing Council has recently released new health and safety sentencing guidelines. What follows is a high level overview of the health and safety sentencing guidelines. The guidelines are available here and are well drafted in language that is free from legal jargon and it is suggested that they be read, re-read and internalised as the implications for companies and directors is significant.

Criminal Conviction versus Sentencing

In criminal proceedings, sentencing is the second of two steps. The first step is conviction, namely the determination by a court as to whether a person or a company is guilty of a crime. In conviction a court determines whether it has been proved that the elements of a crime (often set out in legislation or regulation) have been fulfilled by the conduct of the accused individual or company. Upon conviction, and often in separate court proceedings, the courts consider a number of different factors to determine what an appropriate sentence should be.

Where do the Health and Safety Sentencing Guidelines fit in?

The health and safety sentencing guidelines assist the courts in determining appropriate sentences or punishments once the courts have found that a person or company is guilty of an offence under the following laws:

  • Health and Safety at Work Act 1974
  • Corporate Manslaughter and Corporate Homicide Act 2007
  • Food Safety and Hygiene (England) Regulations 2013
  • Food Hygiene (Wales) Regulations 2006
  • The General Food Regulations 2004
  • Food Safety and Hygiene (England) Regulations 2013
  • Food Hygiene (Wales) Regulations 2006.

Please give me the bottom line?

The health and safety sentencing guidelines use two main criteria for determining the severity of the sentence to be imposed. These are the turnover of the employer and the culpability of the health and safety transgression.

The biggest sentences will be imposed on employers with large turnover, that is turnover in excess of £50 million, who have a high culpability.

Culpability is determined with reference to the seriousness of the consequences of the offence (with death being the most serious consequence), combined with the likelihood of such consequence occurring). The guidelines recommend fines from £3000.00 to £10 million depending on the above factors.

Employers with lower turnover may face lower fines. However, the overriding principle that courts must adopt is the following.

The fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation.

Thus the days of budgeting fines for health and safety legislation breaches are over.

Section 125 of the Coroners and Justice Act, 2009 states that the sentencing guidelines must be applied unless the court is satisfied that it would be contrary to the interests of justice to do so. In this case, legal argument would need to be made as to why the interests of justice require the health and safety sentencing guidelines to be departed from (by either increasing or decreasing the fine).

Could I go to prison?

Yes.

The health and safety sentencing guidelines make provision for prison sentences of up to two years. Recently a scrap metal firm which was in severe financial difficulty was fined a mere £2 (two GBP) for a breach of health and safety legislation. However, the director of Ultimate Traders, the company in question, Nasir Rashid, was given a 6 month suspended prison sentence and fined in his personal capacity because of his own personal culpability in directing an employer to to stand on a forklift. The employee’s are became stuck in the forklift and the employee suffered severe injury.

How can Standards & Legal help?

Good question. The Standards & Legal Platform is the most advanced platform which assists all employees to know exactly what their legal obligations are for any given operational task. Better than legal training, it is touch of a button answer to any health & safety legal query.

The platform is shipped completely customised to your specific operations and delivers all and only the relevant sections of law (with plain English Guidance per section) so that you don’t get drowned in masses of legal provisions.

There is much more to the platform than that, including powerful integrations with managements systems and risk assessments. To find out how it could help you, please do not hesitate to contact us.