REGULAR
A FINE LINE
Dominic Watkins, Partner in the regulatory team at business law firm DWF, considers if proposed sentencing guidelines for serious health and safety offences will usher in an uncertain fate for businesses facing court.
On 13th November 2014 the Sentencing Council published a consultation on its proposed guidelines for sentencing health and safety, corporate manslaughter and food safety and hygiene offences. If the guidelines come into force as currently drafted, they will have a seismic impact on fine levels – for large businesses in particular. While the consultation has now closed, the debate generated by the proposed changes rages on, but what exactly has been proposed and what can businesses expect?
WHY CHANGE? Put simply, the Council believes
that fines are not high enough. Existing guidelines expect a fine starting at £100,000 for a fatal safety case where the breach caused the death and £500,000 for a corporate manslaughter case. It is clear from
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the observations of the courts that these figures should apply to small companies and that large businesses can expect to see much larger fines. This is reflected in some recent cases, such as the fine of £500,000 handed to Network Rail following a collision at an unmanned level crossing, which resulted in serious injury to a child.
NEW FORMULA The guidelines set out a series of nine
steps which a court follows to reach a fine (or, in the case of an individual, potentially a prison sentence). Though the principle behind these has been around for a while, the more structured approach is entirely new.
The first step involves an assessment of harm risked versus the likelihood of harm (which gives rise to a harm category) and the culpability of the offender. The outcomes determine
the seriousness of the offence. From this, the court uses a matrix to plot the level of culpability against the harm category to identify a starting point and a range of fine. There are different tables depending upon the size of the turnover of the defendant.
Next, the court hones in on a final figure by using the remaining steps to adjust the fine so that it is proportionate to the means of the offender, reflects any aggravating and mitigating factors and takes into account other factors such as a guilty plea.
UNCERTAINTY LINGERS While the guidelines helpfully include tables which assist with the assessment of both culpability and harm risked, there are still some significant questions to be answered and adjustment required.
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