On the 1st of February 2016, the new Sentencing Guidelines for corporate manslaughter, health & safety, food hygiene and food safety offenses came into effect. The introduction of the guidelines from the Sentencing Council is undoubtedly going to lead to increased fines being imposed on organisations, and increased custodial sentences for individuals. It is important to note that the guidelines will only apply to England and Wales, however there is no reason to doubt that the Scottish courts will follow the same principles.
The main objective is to ensure a consistent approach is being taken by the Crown Prosecution Service (CPS) when handing down sentences, and will take into account the level of culpability, the risk of harm, and the turnover of the organisation being sentenced. These three points will be the basis for the CPS’s starting point for determining fines and custodial sentences appropriate to the offence.
In order to determine culpability, harm and turnover, defined categories have been developed on a matrix system and can be found via this link – Sentencing Guidelines.
Micro-organisations (those with a turnover of up to £2 million) could face fines of up to £450,000 for serious health and safety breaches, or up to £800,000 for corporate manslaughter.
Small organisations (those with a turnover of £2 million – £10 million) could face fines of up to £1.6 million for serious health and safety breaches, or up to £2.8 million for corporate manslaughter.
Medium organisations (those with a turnover of £10 million – £50 million) could face fines of up to £4 million for serious health and safety breaches, or up to £7.5 million for corporate manslaughter.
Large organisations (those with a turnover of £50 million or more) could face fines of up to £10 million for serious health and safety breaches, or up to £20 million for corporate manslaughter.
What is very disappointing is that ‘Very Large’ organisations have not been defined in the guidelines, which only go on to say: “Where an offending organisation’s turnover or equivalent very greatly exceeds the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence.” This could be described as a missed opportunity, as there are a significant number of organisations in the UK which could fit this description.
The liability for individuals has been well defined and holds the potential for custodial sentences of up to two years being imposed.
Ironically, there have already been inconsistencies with how the guidelines have been applied since they came into effect, which was the very problem they were meant to alleviate; and the legal issues surrounding each of the above points (turnover/culpability/likelihood of harm) have been subject to considerable debate within the courts.
What is clear is that the level of fines and potential for custodial sentences is much greater, and will continue to rise over the coming months and years as the courts build their confidence in using the new guidelines.
Notwithstanding the existing requirement for your organisation to remain compliant with health and safety legislation, the new sentencing guidelines increase the risks of more serious prosecutions.
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