Understanding the 2016 Health and Safety Sentencing Guidelines

March 10, 2016
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New rules for sentencing came into effect in England and Wales in 2016, meaning that court rulings are stricter and harsher than ever before. This has been an important change however, as historically health and safety has been taken too lightly and consequences haven’t reflected the impact that neglecting health and safety can have.

This article gives a breakdown of these changes, which emphasises the importance of adhering to your health and safety duties.

Why Have the New Sentences Come In?

The sentencing council brought in guidelines to help the courts set fair and transparent, but most of all, consistent charges for health and safety offences. It was felt that matters of health and safety were being taken too lightly in the courts and by employers.

The 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.

Employees discussing work in a meeting

This is instead of the outcome-based approach that the courts historically used – the court might have sentenced based on the claim in front of them, rather than the claim that could have happened. As a result,  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.

How Do The Rules Work?

The most recent regulations use offence ranges: 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 includes 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, so they can 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.

The rules apply to offenders aged 18 or above and organisations sentenced after February 2016, regardless of when the misconduct occurred.

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.

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.

Construction workers drilling

The courts then consider the company’s financial position (annual turnover, annual accounts, annual revenue budget, etc.) to ensure the fine is proportionate. They 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. This is because 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.

If you want to learn more, you can read in full detail about these guidelines and see the offence ranges here.

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