Is your business looking to gain a better understanding of Health and Safety offences that apply to both organisations and individuals?
ORJ Solicitors Health and Safety department is here to help. Leading the department is Lesley White, who has provided insight into health and safety sentencing guidelines.
In determining an appropriate sentence, the courts must follow The Sentencing Council Guideline (unless it is satisfied it would be contrary to the interests of justice to do so). The Guideline applies to all organisations and individuals aged 18 and over, sentenced after 1st February 2016 regardless of the date of the offence.
The Guideline specifies the range of sentences appropriate for each type of offence; within each offence, there are a number of categories reflecting varying degrees of seriousness. There is a starting point within each category from which to calculate a provisional sentence. The courts should consider further features of the offence or the offender that warrant adjustment of the sentence within the range, including aggravating and mitigating factors. This applies to all offenders whether they have pleaded guilty or been convicted after trial. Credit for a guilty plea is taken into consideration only after the appropriate sentence has been identified.
The Guideline requires the court to follow a 9 step process. For a company, the starting point is for the court to determine the category of offence using only the culpability and harm factors set out in the Guideline; followed by the size of the organisation and then adjusting the sentence to take account of plea and assistance given by the offending company. Where there are factors present in the case that fall in different categories of culpability, the court should balance these to reach a fair assessment of the offender’s culpability. For example “Very High” – a deliberate breach of or flagrant disregard for the law. “High” – failing to put in place measures that are recognised standards in the industry; failing to make appropriate changes following prior incident(s) exposing risks to health and safety; allowing breaches to subsist over a long period of time. “Low” – the failings were minor and occurred as an isolated incident.
Health and safety offences are concerned with failures to manage risks and do not require proof of actual harm caused. The offence is the creation of the risk of harm. The Guideline sets out categories of harm based upon the risk of harm created by the offence. The assessment of harm requires consideration of both the seriousness of the harm risked by the offender’s breach (for example death; physical or mental impairment resulting in lifelong dependency; a progressive permanent or irreversible condition) and the likelihood of that harm arising (high, medium or low).
The court looks at whether the offence exposed a number of workers or members of the public to the risk of harm: the greater the number, the greater the risk; and whether the offence was a significant cause of actual harm. Actions of victims are unlikely to be taken into account for sentencing purposes. Offenders are required to protect workers or others who may be neglectful of their own safety in a way which is reasonably foreseeable.
The Guideline concentrates upon how far below an acceptable standard of care the offender’s actions (or lack of action) have fallen. With reference to relative financial means, a substantial penalty can be expected in recognition of a high level of culpability even if the actual harm caused is relatively low.
When looking at the size of the company, there are four bands ranging from large (turnover of £50 million-plus) to micro (turnover of not more than £2 million). Where companies very greatly exceed a turnover of £50 million, it is clear the fine should make the directors and shareholders sit up and take note. For example, the starting point for a large company, with the highest harm category, is £4,000,000 (with a range up to £10,000,000); low culpability and the lowest harm category have a starting point of £10,000 (with a range up to £60,000). For a micro company, the ranges using the above categories are £450,000 (very high culpability) and £5,000. The court takes both aggravating and mitigating factors into account, resulting in an upwards or downwards adjustment to the starting point. The statutory aggravating factor is a relevant recent conviction; other factors are cost-cutting at the expense of safety, the deliberate concealment of the illegal nature of the activity, obstruction of justice, and falsifying documents. Factors in mitigation include no previous relevant and recent convictions, evidence of steps taken voluntarily to remedy the problem, high level of cooperation in the investigation, acceptance of responsibility.
The offender is expected to provide comprehensive accounts for the last three years to enable the court to make an accurate assessment. Particular attention is given to turnover, profit before tax, directors’ remuneration, loan accounts and pension provision together with assets shown by the balance sheet. If accounts are not produced, the court may conclude the company can pay any fine. The court will consider proportionality to ensure the proposed fine is also commensurate with the overall means of the offender, whilst still reflecting the seriousness of the offence. If appropriate, the court can take into account the resources of a linked company.
Adjustments will be made by the court to take account of the guilty plea; assistance during the investigation, ancillary orders such as compensation and, in the case of an individual, being disqualified from acting as a director.
For companies, many cases are dealt with in the Magistrates’ Court (unlimited fine provided the offence was committed after the 12th March 2015) with the more serious being committed to the Crown Court. Individuals’ cases will be heard in the Crown Court.
The factors in determining the offence category for individuals are slightly different. Under culpability, the court considers if the offender intentionally breached or flagrantly disregarded the law (very high); did the offender have actual foresight of or willful blindness to the risk of offending but nevertheless the risk was taken (high); the offence was committed through an act or omission which a person exercising reasonable care would not commit (medium), and the offence was committed with little fault for example where significant efforts were made to address the risk, but they were inadequate on this occasion (low).
It is for the individual to disclose to the court all data relevant to his financial position such that it can assess what he can reasonably afford to pay. Where the range of penalties includes a potential custodial sentence, the court will look at whether the custody threshold has passed; if so, is it unavoidable that a custodial sentence be imposed; and, if so, can the sentence be suspended. Factors reducing the seriousness of the offence or reflecting personal mitigation include good character and/or exemplary conduct; inappropriate degree of trust or responsibility, mental disorder or learning disability where linked to the commission of the offence; serious medical condition necessitating urgent, intensive or long term treatment; age and/or lack of maturity where it affects the responsibility of the offender.
The effect of the Guideline has been to impose far more significant, and far-reaching fines than those previously seen with the courts concentrating upon the size of the organisation and the impact the financial penalty will have upon the offender. It is designed to have a real economic impact and make companies and individuals sit up and take note of the need to operate within the law. The level of fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence. It should not be cheaper to offend than to take the appropriate precautions.
If you have any questions or concerns about any points covered in this article, you can speak to ORJ Solicitors’ Insurance, Health and Safety Director Lesley White:
Phone: 01785 223440