REGULAR
a remote chance of death, does that mean they should all be put in at least harm category 3 or assessed against the more or most likely consequence, which may well be category 4 (the lowest level of harm)?
The guidelines are currently unclear on this point. Take a simple slip accident as an example. HSE statistics show that there are 2-3 deaths a year from slips, so any slip accident can be said to have at least a remote risk of death. Although the level of harm is likely to be low, can it be classified as such with certainty given the current wording? Having raised this issue with them directly, the Sentencing Guidelines Council has told us that it is now committed to look at this again.
VITAL ACCOUNTS While sentencing practice does
For example, when assessing culpability does the Council really intend to use “failing to put in place measures that are recognised standards in the industry” as an example of high culpability? While we understand that this may be intended as an example of falling far below the line of compliance, in reality the concern is that this opens the door to the suggestion that the vast number of voluntary standards commonly adhered to in industry suddenly have a punitive effect if not applied.
A similar conundrum is faced by the proposal for assessing the seriousness of harm. Firstly, there is a curious anomaly with the categorisation of the likelihood of harm itself: high, medium and then remote. Why “remote” has been chosen over “low” is unclear and seems to have the unintended consequence of pushing more cases into the medium category. “Remote” tends to suggest something is extremely unlikely to happen; therefore, anything above that level has to be “medium”, which increases the starting point for the fine.
This has a secondary consequence. Since almost any situation has at least
www.tomorrowshs.com
currently take into account the means of the offender, under the Council’s proposals the means of the offender will become an even greater consideration and there will be much closer financial scrutiny of businesses. This is particularly the case for high turnover, low margin businesses where profits may be relatively modest, as without the right financial information the court will assume that the defendant can pay any level of fine and while that has not changed, the stakes are now considerably higher.
We expect a huge amount of time to be spent on this aspect of sentencing, particularly for businesses with a turnover that “very greatly exceeds” £50 million, where the guidelines say “it may be necessary to move outside the suggested range to achieve a proportionate sentence”. As it is unclear what “very greatly” means, exactly how far outside the suggested range should the court move and will this lead to a lack of consistency?
It remains to be seen exactly how the guidelines will change before they are finally implemented by the courts. However, it is clear by applying the approach set out in the guidelines to date that fine levels will be much higher in the future (see examples below).
THE FUTURE Not only will the offender’s finances
be scrutinised in more detail than ever before, but there will be far more
EXAMPLE CASE ONE Facts: An employee in a warehouse
is killed when hit by an FLT driver unloading a vehicle
Turnover: £4billion Harm: Death – category 1 Culpability: Low/medium Actual fine: £175,000 (June 2014)
Anticipated starting point under the proposed guidelines: £300,000 - £1.3million (plus upwards adjustment for being a very large organisation)
EXAMPLE CASE TWO Facts: A customer fell down
an open, unattended hatch to a basement in a high street store
Turnover: £250million Harm: Category 2 Culpability: Medium/high Actual fine: £12,000
Anticipated starting point under the proposed guidelines: £1.1million (plus upwards adjustment for being a very large organisation)
frequent arguments to be had over how culpable the offending behaviour was, exactly what category of harm the offence falls into and whether or not the fine should fall outside of the suggested band. This means that the guidelines will not only result in larger fines, but also considerably greater costs associated with getting to court and time spent at court – and the potential for more delays.
The Council expects that fines for larger organisations will increase and states that fines for smaller organisations “should not be reduced” from current levels. Based on the way in which the guidelines are currently drafted it is difficult to see how fines will do anything other than dramatically increase. At this stage it is not expected that the final guidelines will be substantively different from the proposals. Businesses large and small should therefore be prepared for the definitive guidelines to come into force later this year and, as a result, expect to be at risk of receiving substantially higher fines for any slips in safety measures soon after.
21
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56