New sentencing guidelines for health and safety offences, corporate manslaughter, food safety and hygiene offences were published on 3 November 2015 and will come into force on 1 February 2016.
The guidelines will have a significant impact on the sentencing of organisations and individuals (such as directors, sole traders and partners) including tougher penalties. The guidelines will apply to any case sentenced on or after 1 February 2016 regardless of the date of the offence/s.
The guidelines refer to a number of factors that the sentencing court should take into account before deciding on the appropriate level of sentence. By way of example, sentencing courts will have to determine the category of offence based on the level of culpability and the level of harm.
Culpability relates to the extent to which an offender failed to meet the standards required, for example, the extent to which an offender acted deliberately, recklessly or negligently. For companies, the courts are likely to consider whether failings were systemic throughout the company as well as any short cuts taken to save money. Harm is determined by considering the level of risk and the seriousness of any injury resulting from the offence.
The guidelines actively encourage the courts to focus on the turnover of organisations when deciding on the appropriate level of fine. There are fears that this will lead to firms of varying sizes receiving significantly different fines for similar offences.
Under the guidelines, a large organisation that commits an offence with the greatest exposure to harm (for example, a fatal accident) will potentially be covered by a sentencing range of £4.8 million - £20 million with a starting point of £7.5 million. Large food operators that commit a food safety offence with a serious adverse effect on human health will potentially be covered by a sentencing range of £500,000 - £3 million.
The potential for significantly higher fines is clear and the message in the guidelines is that fines must be high enough to have a real economic impact on organisations in order that management and shareholders appreciate the need to comply with health and safety legislation.
Individuals including directors, sole traders and partners that commit serious offences with high culpability can expect custodial sentences, particularly if the court forms the view that profit was a motivating factor in the offence.
Some commentators predict that the anticipated sharp rise in the level of sentences will mean more cases going to trial (despite the increased costs that this will entail) as defendants in the most serious cases may see little benefit in pleading guilty.
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