Understanding the 2016 Health and Safety Sentencing Guidelines
New rules for sentencing in England and Wales come into effect on 1st February 2016. These guidelines intend to help the courts set fair and transparent, but most of all, consistent charges for health and safety offences.
The rules apply to offenders aged 18 or above and organisations sentenced on or after 1st February this year – regardless of when the misconduct occurred.
Why Have the New Sentences Come In?
The sentencing council have brought in guidelines because it was felt that matters of health and safety were being taken too lightly in the courts and by employers. The council intend stricter guidelines to change blasé attitudes towards health and safety law.
These new guidelines take a risk-based approach, meaning that court decisions are based on how seriously companies and individuals take the assessment and management of risks. It also means that when cases are brought to suit, the court considers what could have happened rather than what did happen.
This is instead of the outcome-based approach that the courts used to use; beforehand the court might have sentenced based on the claim in front of them, rather than the claim that could have happened. Which meant that many employers and individuals received lighter sentences because the incident that did happen wasn’t the worst incident that could have happened i.e. a broken arm instead of a possible fatality.
The knock-on effect of harsher sentencing should be that employers take matters of health and safety seriously – but… whether this happens in practice we’ll have to see.
And, we should also brace ourselves for an increase in grumblings about “health and safety gone mad” after word spreads about firmer sentencing in the year ahead.
How Do The New Rules Work?
The new regulations use offence ranges.
These are a series of sentences suitable for each type of offence, the ranges vary depending on the severity of each case.
Within the offence range, the council have included minimal sentences called starting points for each type of offence, these are then adapted by the courts through the use of criteria stated in the guidelines on an individual basis to create a sentence appropriate for the offence.
Starting points provide judges with a base punishment that applies to everyone. This increases the level of sentencing consistency across the board for health and safety offences.
What Are The Maximum And Minimum Penalties?
The offence ranges begin at a £50 minimum fine for minor offences and go up to as much as a £10 million fine for severe breaches of health and safety law. When cases are tried on indictment or tried summarily, the maximum fine is unlimited due to the severity of these cases.
The guidelines also provide a series of steps for judges that they should take when devising a sentence.
The first step is to determine the type of offence.
There are two phases of this process; first the judge must identify the level of culpability (how responsible the guilty party is) ranging from low to very high. Second, the judge should determine the degree of harm caused by failure to manage risks.
Once the type of offence has been identified, the judge has to evaluate how many employees and members of the public were exposed to harm and whether the risk itself posed significant harm or if there were other external and uncontrollable factors.
The courts then consider the company’s financial position (annual turnover, annual accounts, annual revenue budget, etc.,) to ensure the fine is proportionate.
The courts also consider any relevant mitigating factors such as a good health and safety record and evidence of the company taking steps of their own accord to remedy the problem, etc.,
The report stresses that the penalty should be substantial enough to have a real economic impact on management and shareholders to express the gravity of health and safety law.
For individual charges, the offence range begins with a conditional discharge and extends to up to two years’ custody. The maximum penalty for individuals tried on indictment (an offence tried in the crown court before a judge and jury) is an unlimited fine and/or two years’ custody. When a person is tried summarily (without the right to a jury or indictment), the maximum penalty is an unlimited fine and/or six months custody.
Do you think these new guidelines are a good thing or a bad thing?
If you want to read in full detail about the new health and safety guidelines and see the offence ranges, the guideline can be found here.
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