The jury is out

On 4 April the Sentencing Council for England and Wales published an assessment of the impact of its Definitive Guideline for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences which came into force in February 2016. As the assessment notes, “For health and safety offences there has been a considerable increase in fine amounts for larger organisations since the guideline came into force, which was anticipated by the Council.”

This was not a surprise. These increases were anticipated not only by the Sentencing Council but by the wider community, either directly involved in or interested in keeping people healthy and safe at work.

As the Sentencing Council’s website makes clear, “The Sentencing Council for England and Wales was set up to promote greater transparency and consistency in sentencing, while maintaining the independence of the judiciary. The primary role of the Council is to issue guidelines on sentencing which the courts must follow unless it is in the interests of justice not to do so.”

The jury's out on how effective the new fines have been, says Neal Stone

The impact assessment is thorough and well researched. But the heavy focus is on the numbers, the quantum drawn from the Ministry of Justice’s Court Proceedings Database rather than the key question, that is: are tougher fines achieving the underlying policy objectives?

Tucked away on pages 5–6 of the impact assessment are the results of analysis carried out on behalf of the Sentencing Council, comparing fines imposed over a 10-month period prior to the guidelines coming into force and for a 10-month period following. The average fine in the pre-guideline period was £40,500. The average fine has increased five-fold, following the coming into force, to £221,700.

The fines imposed, estimated by HSE to be some £73 million in 2017/2018 (averaging £147,000 per conviction – a lot lower than the Sentencing Council’s assessment) do not go to the enforcing authorities, namely HSE and local authorities, but rather into the general taxation pot. The fines imposed, up from £38 million in 2015/16, are not then being used to bolster HSE and local authorities hard-pressed finances.

The world has changed significantly for organisations and individuals facing prosecution for breaching health and safety laws. Whichever way you cut it, fines have increased exponentially. Prior to 2016, some fines imposed for life-ending and life-changing incidents were derisory. That has changed significantly. The impact assessment revealed that prior to the guideline only one in six organisations received a fine of £60,000 or more, whereas now just over half of all organisations are being fined £60,000 or more.

It is important to remember that the new guideline did not come out of the blue. From the late 1990s, there was growing concern that fines being imposed by lower and higher courts for health and safety offences did not, in many instances, reflect the seriousness of the offences that had been committed. Wide-ranging stakeholder support, including the major political parties, the senior judiciary, health and safety practitioners and HSE, resulted eventually in the consultative sentencing proposals published by the Sentencing Council in 2014 and the resulting guideline.

There is an important policy objective underlying fines imposed for health and safety offences and more generally for all criminal offences. Statute provides that the purpose of sentencing for criminal offences is to:

• punish offenders
• reduce crime by deterring others
• reform and rehabilitate offenders
• protect the public
• provide reparation to victims and society.

When an audience of 150 health and safety practitioners at the Health and Safety NEC Event on 9 April was asked if any of these five policy objectives had been achieved, the answer was a resounding ‘no’.

From a sample survey, the Sentencing Council concluded that courts were generally applying the guideline in the manner intended. We may have to wait many more years to ascertain whether the new fines environment has had a significant impact in helping to reduce the incidence of injury and ill health in the workplace. Meanwhile, the jury is out.

Neal Stone is Head of policy and governance at McOnie Agency