The Sentencing Council’s new guidelines could have a profound impact on attitudes to workplace health and safety.
Among the numerous consultations concerning health and safety regulation and the effectiveness of our regulatory framework during the past three years, the Sentencing Council’s proposed guidelines concerning health and safety offences and corporate manslaughter is without doubt one of the most important.
The proposed new guidelines, published on 11 November, are currently out for public consultation. In framing our response the British Safety Council will be guided, as ever, by the views of our members and what the evidence shows concerning the effectiveness of current sentencing practice.
Understandably, much of the chattering has focused on the potential mega fines that will be imposed on large organisations where there is a high degree of culpability – a deliberate breach or flagrant disregard for the law – resulting in the risk of seriousness harm – death or permanent physical or mental impairment. Organisations convicted for such offences could face fines in the range of £2.6m to £10m.
The consultation document, which runs to 122 pages, poses 33 separate questions concerning sentencing for health and safety offences and for corporate manslaughter. You can breathe a sigh of relief in what we are looking for from you. We will distil the issues down to broad principles concerning the sentencing both of organisations and individuals, the culpability factors, the proposed approach to assessing the risk of harm, the starting point and ranges of fines.
The document makes the argument for a comprehensive framework for categorising culpability and harm. The proposed new guidelines have not come as a shock. Rather the main thrust of the proposals concerning higher fines for large organisations for serious health and safety and environmental offences was presaged in the judgement delivered by the Lord Chief Justice in the Court of Appeal’s decision published in January this year in R v Sellafield and Network Rail. But let’s not fixate solely on offences involving large organisations.
The Sentencing Council guidelines note the purposes of sentencing are clearly stated. These are, to punish offenders; reduce crime including through deterring others; reforming and rehabilitating offenders; protecting the public; and reparation by offenders to persons affected by their offences.
There is then an underlying theme that all is not well with the level of sentences currently being handed down by the higher courts in England and Wales to organisations and individuals convicted of health and safety offences. But there are relatively few of these offences coming before the higher courts. Whether serious offences are being brought before the courts in sufficient numbers is not a matter for this consultation.
The new sentencing guidelines will, hopefully, assist the courts in the important and sensitive area of determining the appropriateness of the punishment. Equally importantly dutyholders and all of those involved in advising and assisting dutyholders in meeting their legal obligations will have a far clearer understanding of the consequences of breaking the law.
This consultation has the potential to have a profound and lasting impact on attitudes and behaviours. The Sentencing Council should be commended for a reasoned and well argued set of proposals.
Neal Stone is director of policy and communications at the British Safety Council
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