UK: Sentencing Council Definitive Guideline Published: Health and safety offences, corporate manslaughter and food safety and hygiene offences

• United Kingdom

• Life sciences

17-12-2015

The Sentencing Council Guidelines for ‘Health and safety offences, corporate manslaughter and food safety and hygiene offences’ have been published. They will have a significant impact on the sentencing of offences when they come into force on 1 February 2016 and will apply to any case heard on or after that date, irrespective of when the offence occurred.

The definitive Guidelines do not differ significantly to those put out for Consultation earlier this year. The key changes for health and safety offences for both organisations and individuals, as well as corporate manslaughter, are as follows:

• Inclusion of targeting vulnerable victims as an aggravating feature.
• Greater emphasis has been placed on the importance of remediation as a means of mitigation.
• The measures of culpability for individuals for health and safety offences have been changed to mirror those of organisations.
• Greater clarity that all organisations when sentenced for corporate manslaughter or health and safety offences will have consideration given to the wider impact of any fine on the organisation or innocent third parties.

The key changes for food safety offences are:

• The most serious level of harm has been broadened to include not only where there has been a serious adverse effect on individuals but also where there is a high risk of an adverse effect.
• Harm now includes where a consumer has been misled regarding a food’s compliance with religious or personal beliefs.
• Factors relevant for mitigation have been reduced.

Health and safety offences – Organisations

The Guidelines are based on the concept that ‘culpability’ and ‘harm’ are used to determine the level of fine, cross-referenced against the size of the Defendant organisation.

The measure of ‘culpability’ varies from ‘low’, where failings are minor and not systemic, to ‘very high’, where there has been a deliberate breach or flagrant disregard for the law. The level of ‘harm’ is based upon the risk of harm created by the offence, which is they exacerbated if actual harm has occurred.

Once the ‘culpability’ and ‘harm’ categories are established, the turnover of the organisation will be used to allocate a particular sentencing matrix. There are different matrices depending on the size of the organisation:

• Micro – Turnover not more than £2 million
• Small – Turnover between £2 and £10 million
• Medium – Turnover between £10 and £50 million
• Large – Turnover over £50 million

The matrix for large organisations is below:

Provision is made for ‘very large’ organisations, with the Guidelines stating that it may be necessary to move outside of the stated ranges. Unfortunately, no further guidance is given on how those calculations should be conducted.

Once the matrix has been used to determine the fine range, it will then be for the Court to engage in the normal sentencing exercise and follow the following process:

• Consider any mitigating and aggravating features of the case, as listed in the Guidelines;
• Ensure that the fine is proportionate to the means of the offender;
• Consider other factors that may warrant adjustment of the fine, such as the impact of any fine on the local economy; and
• Apply a reduction for a guilty plea (where appropriate).

Whilst the figures used within the Guidelines provide some clarity to the sentencing process, the above four stages still maintain a level of unpredictability about the fine to be imposed. There will be cases with similar fact patterns that may still differ in the level of fine, perhaps due to the mitigating and/or aggravating features that are applicable.

Health and safety offences – Individuals

The exercise to determine ‘culpability’ and ‘harm’ remains very similar to that used for organisations. There are also similarities with the use of a matrix to determine a starting point and category range for punishment.

The key ‘take home’ message is the increasing possibility of custodial sentences. Even for those offences involving low culpability, there is still the possibility of a 26 week prison sentence in cases involving the highest level of harm.

Companies – Corporate manslaughter

The guidelines are much clearer for corporate manslaughter sentencing. There is no need to determine the level of ‘harm’ as all prosecutions will follow a fatality. ‘Culpability’ levels are also reduced into two categories: ‘serious’ and ‘more serious’.

The proposed fines are significant and much larger than the majority of those imposed for corporate manslaughter offences since April 2008. The figures for ‘large’ organisations are significantly heavier:

The sentencing exercise then mirrors that to be followed for health and safety offences, above.

Food safety and hygiene offences – Organisations and individuals

The Guidelines cover a multitude of food safety and hygiene offences including placing unsafe food on the market, inadequate traceability, food recalls and withdrawals, failure to adopt systems based on HACCP principles and misleading consumers through labelling, advertising and presentation of food.

The approach to sentencing is the same as the health and safety offences with the same concepts of ‘culpability’ and ‘harm’. For individuals there is an increased possibility of custodial sentences for offences involving ‘very high’ or ‘high’ culpability. For large organisations the matrix is set out below:

A key change in the Guidelines is to the list of mitigating features which now excludes any evidence that the business or individual has effective food safety and hygiene procedures in place or evidence of any steps taken to remedy the problem. Therefore where a business may have fallen just short of establishing a due diligence defence; evidence of its systems and procedures will no longer be considered a mitigating feature.

The impact

The concept of imposing higher fines for serious health and safety offences and corporate manslaughter is not new. Sentencing guidelines were published a number of years ago but failed to have the impact expected. A suggested starting fine of £500,000 for corporate manslaughter offences has been imposed only twice, once against a company in liquidation. Some health and safety cases in more recent years have hinted towards increased fines, but these new Guidelines represent a more joined up approach.

We expect the Guidelines to increase the level of fines dramatically. Further, when sentencing, there will be significant work input by both the Prosecution and Defence when determining the correct levels of ‘harm’ and ‘culpability’. The difference between one harm category and another could be over £1 million and this is likely to have the following effects:

• Sentencing hearings will take longer and it may be necessary to undergo hearings to establish facts (‘Newton Hearings’) so that there can be evidence and legal arguments on the correct level of ‘harm’ and ‘culpability’;
• Expert evidence may be required, even for simple guilty pleas, in order to settle on the correct sentencing categories; and
• Organisation responses to regulator investigations may need to be more focused on mitigating the most serious sentencing categories.

Conclusion

The Guidelines are arguably cynical; they are based on the premise that duty holders will take health and safety and food safety more seriously if the penalties are higher. Those organisations that react to the Guidelines and bring it to the attention of senior managers will most likely be those that have robust procedures. Those organisations that are ignorant of the Guidelines will be in for an unwelcome surprise.

We shall be providing a briefing on the Guidelines, as well as an update on other events during the last year, at our annual Health and Safety Update series. View our event page for more information. The Food Safety Guidelines will be reviewed and discussed at an evening event in our London office on 12 January 2016.