The Sentencing Guidelines: what lawyers are saying

HSE LogoThe proposed guidelines will likely mirror the environmental guidelines that have been in force since July 2014 that appear to issue proportionate sentences by linking starting points for fines to the size of the organisation involved.

The new sentencing guidelines are likely to be in force by the end of 2015/early 2016 and it is presumed that the guidelines will be retrospective in application, meaning they will apply to cases involving incidents that occurred before the date on which the guidelines come into force.

“Organisations should see this as an opportunity to promote management engagement and prioritisation of health and safety in the workplace, alongside investment in regulatory compliance.”

Here, five lawyers give their opinions on what the proposed changes will mean.

Sally Roff, partner, DAC Beachcroft Claims Ltd

“It won’t have escaped anyone’s attention that HSE prosecutions of directors and individuals following serious workplace incidents are on the increase. The forthcoming new Sentencing Guidelines for health and safety offences are likely to lead to an increasing number of custodial sentences for individuals found guilty of such offences. This could mean custody not only for the very worst instances of individual offending  ie deliberate or reckless conduct resulting in death or catastrophic injury but also cases of mere negligence on the part of an individual. By way of example, the Guidelines propose a starting point of 26 weeks in custody for negligent conduct which falls within the highest category of harm (ie death, high risk of death or catastrophic injury). We could therefore see individuals without management responsibilities facing prison in situations where there has been momentary inattention on their part – akin to the motoring offence of causing death by careless driving.

“Recent cases also show that Courts are already imposing stiff sentences on individuals, with directors, in particular, being punished with immediate custodial sentences rather than suspended sentences. Alternatively those receiving suspended sentences are also being handed a heavy fine. Earlier this month at Canterbury Crown Court, a director received a sentence of 12 months’ imprisonment, suspended for two years, after a fatal accident. He was also fined £75,000 and  prosecution costs of £25,000 were awarded against him.

“Recent HSE statistics show a conviction rate of 94% in all HSE prosecuted cases (2013-2014). With that in mind and the looming threat of jail even for negligent conduct, there has never been a more critical time for all individuals at work to ensure that they carry out their roles without risk to the health and safety of others, whether colleagues, patients or member of the public.

“Organisations should see this as an opportunity to promote management engagement and prioritisation of health and safety in the workplace, alongside investment in regulatory compliance.”

Kevin Bridges, partner, Pinsent Masons LLP

“The sentencing landscape for health and safety offences is set to change dramatically if the Sentencing Guidelines, when published, mirror those consulted on earlier this year. The impact will be seismic not only for companies convicted for such offences but also for individuals, given the current suggestion in the draft guidelines setting the threshold for imprisonment in fatal type cases at “neglect”, which is a relatively low standard of care.

“For companies of all sizes, you can expect the level of fines under the new regime to be substantially higher than now, given the mandatory status the guidelines will have in both the Magistrates Court (where the cap on fines has been removed) and the Crown Court.

“For very large companies, with a turnover far in excess of £50M per year, all bets are off, and fines could be eye-wateringly high. That’s certainly what has been suggested by the Court of Appeal in the first environmental case to come before it since the Environmental Sentencing Guidelines (which adopt a broadly similar approach to sentencing offenders) came in to effect in July 2014.”

Simon Joyston-Bechal, director, Turnstone Law, extract from How can we change enforcement to improve health and safety?

“The currently proposed sentencing guidelines already make reference to remediation and remedial orders. For example, for health and safety offences by organisations, the draft states that in all cases the court must consider whether to make ancillary orders and these may include remedial orders “in addition to or instead of imposing any punishment” on the offender.

“This route would be taken up more often and more constructively if the guidelines went a little further. The problem is that in almost all cases the court does not have the time or the experience to initiate an appropriately worded remedial order. In the run up to sentencing, the prosecutors are focusing on getting a ‘respectable’ fine and the defence are focusing on keeping the fine down. However, if the offender had a real incentive to agree a remediation plan with the prosecutor, things might be different. The guidelines should create such an incentive.”

Kizzy Augustin and Oliver Brooks, Pinsent Masons LLP, extract from Size really does matter: an analysis of the sentencing guidelines.

“These guidelines and the complicated tariff ‘matrix’ should make businesses sit up and pay attention. The draft guidelines intend for fines to be deliberately punitive and to remove any economic gain that may be derived from health and safety offences. Very large organisations face greater uncertainty in sentencing, with the possibility of “through the roof” fines and the absence of guidance for this particular type of organisation giving rise to the potential for inconsistency.

“The court should adjust the starting fine in light of any aggravating and mitigating factors, which are likely to relate to the wider circumstances of the offence and also include factors relating to the offender. Examples of aggravating factors include cost cutting at the expense of safety and a poor health and safety record. Relevant mitigating factors might include an absence of previous convictions and having effective health and safety procedures in place.

“Lawyers defending corporate offenders may find that the proposed fine tariffs will encourage defendants to challenge the prosecution’s assessment of the facts of the case through ‘Newton hearings’ (a hearing that, following a guilty plea, determines a factual dispute between prosecution and defence version of events where it is likely to affect the appropriate resulting sentence) or even contested trials in an attempt to avoid severe fines.”

Source: SHP

Post date: 17 Aug 2015

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