Updated sentencing guidelines could see fines ‘significantly increase’ for health and safety offences

The changes, in force since 1 June, are intended to bring greater clarity and consistency to fines against companies with a turnover in great excess of £50m.

Kevin Bridges, regulatory expert at Pinsent Masons, commented that: “The amendments could see the starting points for fines under the relevant Sentencing Council’s guidelines significantly increase for health and safety, food safety and food hygiene, corporate manslaughter and environmental offences committed by VLOs.”

Although the maximum fine for a health and safety offence is unlimited, factors like the severity of the offence, the number of people affected, the company's size and financial resources, and the steps taken to prevent future incidents all play a role in determining the severity of the penalty.

However, critics have pointed out that the guidelines, introduced ten years ago in 2015, have led in some cases to "wildly differing" sentences.

In their submission to the Council’s consultation, Eversheds Sutherland (Intl) LLP stated: “The approach to determining if an organisation is a VLO differs considerably in different court centres and between different judges.

“Without any further, tangible, guidance on the approach to be taken to VLOs, the capacity for wildly differing approaches to sentencing – and therefore fines – will continue.”

Judges have had “limited direction” on how to arrive at a fine for the biggest firms, agree Fiona Cameron, Senior Practice Development Lawyer at Pinsent Masons who wrote alongside Bridges in a blog post: “Until now, courts have had limited direction on how to scale fines appropriately for companies with turnover “very greatly” exceeding the threshold for large organisations of £50m, often leading to inconsistent outcomes."  

The latest amendments make it clearer that judges must consider fines outside the range for large companies to achieve a proportionate sentence.

“It was said to be ‘somewhat inconceivable that these ranges could ever be applicable’”, said Bridges.

The issue was first raised by the Environment Agency, which argued the courts could benefit from more and clearer guidance.

This was endorsed by Secretary of State for Environment, Food & Rural Affairs, Steve Reed. Reed has just brought in new powers which allow courts to sentence bosses of water companies who break the law over pollution to up to two years in prison.

When the Sentencing Guidelines were first introduced in 2015, there was a sharp increase in fines, with 38 fines of over £500,000 according to HSE data, with the largest fine against Merlin Entertainment at £5 million in 2016.

In 2021, WH Malcolm Ltd (trading as the Malcolm Group) became recipient of the largest fine in two decades after an 11-year-old boy was electrocuted at its depot. The judge sentencing the case said: “This fine must bring home to directors and board members the need to comply with health and safety legislation.”

These latest amendments for sentencing cases in England and Wales are part of the fourth ‘miscellaneous amendments consultation’ the Sentencing Council holds each year. Other changes include to cases involving careless driving or those driving with the wrong licence.

Amendments to sentencing guidelines here

Full definitive guidelines to sentencing health and safety offences here