THE MOST DRAMATIC CHANGE IN HEALTH AND SAFETY ENFORCEMENT SINCE 1974

The most dramatic change in health and safety enforcement since 1974

The new sentencing guidelines for health and safety offences published today are set to revolutionise punishment for health and safety offences.

The Sentencing Council’s stated intention is to increase the level of fines for serious offences, particularly for larger companies; whilst reserving prison sentences for very serious offences.  It will greatly increase fines across the board and most dramatically for very large companies.  More worryingly, many more directors, managers and junior employees will be handed custodial sentences due to a significantly lower threshold for imprisonment.

The new sentencing guidelines apply to health and safety offences committed by organisations and individuals, as well as to corporate manslaughter and food safety/hygiene offences.  They introduce a structured nine step approach that the Court should follow, so as to calculate sentences.  This involves plugging culpability and harm factors into a series of tables to reach recommended starting point fines, as well as ranges of fines above and below the starting points.

The new regime has been carefully calculated and will certainly improve consistency across England and Wales.  It was published in draft for consultation in November 2014 and the final version published today is little changed from the draft, with the same figures and tables for fines as in the draft.  These will apply to sentences handed down from 1 February 2016, which make the guidelines retrospective in the sense that they apply to offences that have already been committed and have not yet come up for sentencing.

In short:

Harm

Health and safety offences are concerned with failures to manage risks to health and safety and do not require proof that the offence caused any actual harm.

The offence is in creating a risk of harm.

Fines: Obtaining financial information

The offender is expected to provide comprehensive accounts for the last three years, to enable the court to make an accurate assessment of its financial status. In the absence of such disclosure, or where the court is not satisfied that it has been given sufficient reliable information, the court will be entitled to draw reasonable inferences as to the offender’s means from evidence it has heard and from all the circumstances of the case, which may include the inference that the offender can pay any fine. Normally, only information relating to the organisation before the court will be relevant, unless exceptionally it is demonstrated to the court that the resources of a linked organisation are available and can properly be taken into account.

1. For companies: Annual accounts.

Particular attention should be paid to turnover; profit before tax; directors’ remuneration, loan accounts and pension provision; and assets as disclosed by the balance sheet. Most companies are required to file audited accounts at Companies House.

Failure to produce relevant recent accounts on request may properly lead to the conclusion that the company can pay any appropriate fine.

2. For partnerships: Annual accounts.

Particular attention should be paid to turnover; profit before tax; partners’ drawings, loan accounts and pension provision; assets as above. Limited liability partnerships (LLPs) may be required to file audited accounts with Companies House.

If adequate accounts are not produced on request, see paragraph 1.

Offences guidelines - H&S and F&S 

Offences fines guidlines