Sentencing guidelines: looking for the right balance

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The December 2014/January 2015 edition of Safety Management included extensive coverage of the consultation currently being undertaken by the Sentencing Council concerning new sentencing guidelines for health and safety offences, corporate manslaughter and other offences committed in England and Wales.

We reported that this consultation was one of the most important concerning the regulation and enforcement of health and safety in recent years. As the deadline for responses has now passed, we are able to provide the results of the survey of our own members which in turn informed the British Safety Council’s formal submission to the Sentencing Council.

The consultation document, which ran to 122 pages, posed 33 separate questions concerning sentencing for health and safety offences and for corporate manslaughter. The document makes the case for clearer guidelines with the argument for a comprehensible framework for categorising culpability and harm.

In the introduction to the consultative document the Sentencing Council recognised, “as a result of the relative infrequency with which magistrates and judges sentence these cases, there was a lack of familiarity with them... The council identifies some inconsistency in how various factors were weighted and applied in reaching sentencing decisions across the country.”

The council went on to acknowledge past criticism, “that fines imposed on organisations for health and safety offences were too low relative to the harm caused, the culpability of the offender and, on occasions, the means of the offender.”

The membership of the Sentencing Council comprises some of the great and the good from the senior judiciary, legal practice and academia. The influence of the president of the Sentencing Council, Lord Thomas, the Lord Chief Justice, in recognising that action had to be taken to help remove inconsistencies in sentencing should not be underestimated.

The Lord Chief Justice set out a clear marker in the case of R v Sellafield and Network Rail, where both organisations were appealing against “excessive” fines, that the level of fines imposed by higher courts in serious cases involving large organisations were not excessive, probably quite the opposite.  Something had to be done.

It is important not to overlook the relatively small number of cases concerning alleged breaches of health and safety law coming before the courts. As the consultation document notes only 420 offenders were sentenced for health and safety offences in England and Wales in 2013.  

Consulting British Safety Council members
The British Safety Council consults its members as a matter of course on major issues concerning the regulation and management of health and safety, particularly where changes are proposed to the regulatory framework and the enforcement of health and safety law.

On this occasion we invited our members in England and Wales to submit their views to a set of eight questions which went to the heart of the Sentencing Council’s consultation. The responses, which are set out below, were key in how we framed our submission.

We received 195 responses. The breakdown of organisations responding by size is as follows: self-employed people 4%; micro organisations with five or fewer employees 3%; small organisations between six and 49 employees 17%; medium organisations between 50 and 249 employees 24%; and large organisation with over 250 employees 52%.

Some two thirds of the responses received came from organisations in the construction, manufacturing, oil and gas, energy distribution, utilities and transport and distribution sectors – these are sectors enforced by the Health and Safety Executive. 

These are the results:

In response to the first two questions there was overwhelming support from respondents for culpability and seriousness of harm to be key factors in determining the level of fines.

Do you agree that culpability, that is the extent to which the offender failed to meet the legal standards required of them, should be a key factor in determining the level of fines?

A large organisation commented: “If the organisation has not met or attempted to meet the legal standard it should rightfully suffer the consequences of their inaction.”

Do you agree that in determining the fine there should be an assessment of seriousness of the harm caused by the offence?

A medium-sized organisation felt that there should be no distinction between actual and potential harm. This view was echoed by a large organisation: “The fine should be based on the potential seriousness of the harm that could have been caused and the likelihood that the harm would have occurred. The actual harm caused should be irrelevant.”

The next four questions drew the most divergent range of responses. There was considerable concern regarding minimum and maximum fines for all four categories of organisation and also that the minimum fines had been set too low.

Conversely, there was considerable concern felt by some respondents that the higher level of fines for high culpability and very serious harm were excessive, putting at risk the survival of the respective organisation.

Do you agree with the approach that for micro organisations (turnover of less than £2m pa) the level of fines should range from £50 for low culpability where harm was remote to £450,000 where there was very high culpability and very serious harm?

A medium-sized organisation commented: “There is no point hitting a small firm with an enormous fine they cannot afford to pay, which would put them out of business and cause suffering to other employees.”

A self-employed person called for a higher minimum fine for micro organisations. “£50 is too low for a minimum fine and will not deter anyone from breaking the law. The minimum fine should be at least £500.”

A large organisation argued that for all fines, for all sizes of organisations; “fines should take account of profit not turnover. Businesses can have a high turnover but low profit ratio.”

Do you agree with the approach that for small organisations (turnover between £2m and £10m pa) the level of fines should range from £100 for low culpability where harm was remote to £1.6m where there was very high culpability and very serious harm?

Do you agree with the approach that for medium organisations (turnover between £10m and £50m pa) the level of fines should range from £1,000 for low culpability where harm was remote to £4m where there was very high culpability and very serious harm?

These concerns over the lower and higher level of fines are echoed in responses concerning proposals for small and medium-sized organisations, “The lower level fine is too low. Needs to be higher to act as a deterrent.”

A large organisation argued that “The ability to pay is not a factor for most other criminal offences.”

Do you agree with the approach that for large and very large organisations (turnover over £50m pa) the level of fines should range from £3,000 for low culpability where harm was remote to £10m where there was very high culpability and very serious harm? 

There were some concerns that higher level fines could result in businesses having to close with the consequent loss of employment. But there were respondents who saw this as the price that organisations must pay for serious wrongdoing. “The higher level fine, resulting in the closure of the business, may be justified in certain circumstances in the public interest.”

The proposed lower threshold drew adverse comment. “The lower fine threshold of £3,000 is too low. Needs to be higher to act as a deterrent.”

Another respondent suggested: “The minimum fine should be at least 1% of the organisation’s turnover.”

Do you believe that the proposed new guidelines will result in a significant change in the sentencing practice of courts in England and Wales?

While there was some optimism that the new guidelines would result in greater consistency, many respondents admitted that their lack of knowledge concerning current sentencing practice made the question difficult to answer.

The Sentencing Council considers that deliberate actions by individuals (highest category of culpability) that put others at serious risk of harm should have a custodial sentence as a starting point unless the risk of harm is low. Do you agree with this approach?

Of all questions, this one provoked widely divergent range of views. There were those who saw imprisonment as of little value in helping to deter breaches of health and safety law while others considered imprisonment justifiable in the most serious cases where individuals by their actions were culpable and caused serious harm. “Inaction or the wrong action leading to loss of life or limb should be punished with the loss of liberty.”

Although in the minority, there were respondents who while agreeing with the use of custodial sentences did not see this sanction as an appropriate starting point. “Custodial sentences should be imposed where all of the circumstances justify such action, not as a starting point.” Custodial sentences as a starting point, to some respondents, seemed excessive.

Other sanctions were cited as having a greater impact, “A fine or prohibition on particular work activity may have more impact.”

The full text of our submission to the Sentencing Council is available at the policy section of the British Safety Council website and more information on developments will be available in Safety Management.


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