In June 2016 we penned an article “Sentencing Guidelines – Making their Presence Felt” so it would seem appropriate to review a year on what, if anything, has changed?
The ethos of the Guidelines was simple:-
“We want to ensure that these crimes don’t pay. They can have extremely serious consequences and businesses that put people at risk by flouting their responsibilities are undercutting those that play by the rules and do their best to keep people safe…
[They] will help ensure a consistent approach to sentencing, allowing fair and proportionate sentences across the board, with some of the most serious offenders facing tougher penalties. We want to make sure it is clear that it will be cheaper to comply with the law than break it”.
Michael Caplin QC, Member of the Sentencing Council
Well, in terms of the court’s willingness to punish companies by affecting their bottom line there has certainly been an impact as demonstrated by the following statistics.
- An increase in fines for health and safety offences by 43%
- Fines of £37M in 2015/16 have risen to £54M in 2016/17
- Include individual fines of up to £2M
- £2M fine for a serious spinal injury
- A threefold increase in the average fine from £90,604 pre-guidelines to £280,974
(Health & Safety Fines Reach £54M, The Times, Francis Gibb, Legal Editor, July 3,2017)
In relation to the impact within businesses, major companies are having to set aside significant funds to take into account potential liabilities from historic cases (Balfour Beatty set aside £25M for OSH penalties, https://www.ioshmagazine.com/article/balfour-beatty-sets-aside-ps25m-osh-penalties).
Furthermore, in relation to providing a more consistent approach to sentencing it appears that the law-makers consider it the way forward and has arguable paved the way for further changes, this time in relation to convictions of gross negligence manslaughter.
On 4th July 2017 the independent body responsible for developing sentencing guidelines announced a consultation on proposals for managing sentences for individuals (managers and company directors) convicted of gross negligence manslaughter. (https://www.ioshmagazine.com/article/new-court-guideline-proposed-manslaughter)
As with the sentencing guidelines for health and safety offences, culpability and harm will be taken into account and decisions based on certain perameters (see Table below).
Under the draft guidelines where an offender’s culpability was judged to be a lapse in otherwise good standards of care then category D would apply giving the offence a range of 1-4 years.
In contrast, evidence of negligence persisting over a period of time could result in a jail term of 6-12 years (category B) and a complete disregard for the safety of employees, motivated by financial gain or avoidance of cost should expect a prison sentence of 10-18 years (category A).
The council have announced that:-
“The introduction of guidelines will be particularly useful in promoting consistency in sentencing and transparency in terms of how sentencing decisions are reached.”
Sentencing Council member Mr Justice Holroyde comments:-
“Manslaughter always involves the loss of a human life and no sentence can make up for that loss. In developing these guidelines, we have been keenly aware of the impact caused by these offences and so the guidelines aim to ensure sentencing that properly reflects both the culpability of the offender and the seriousness of the harm which has been caused.”
So what about my own views towards the sentencing guidelines? Have these changed?
In my original view, the real benefits of the sentencing guidelines was the opportunity for health and safety professionals, in-company and consultants alike to use them to open the door into the Board Room.
My view has not changed. Indeed, arguably it has been reinforced, particularly in light of the new consultation on gross negligence manslaughter.
No one likes to consider what could go wrong. So often as safety professionals we are looking backwards and using the benefits of hindsight and not foresight.
The effect of the sentencing guidelines to date should indeed be part of a “what if” scenario, an opportunity to pose important questions, to ask “could this happen to us” and “how would this affect our business” and then use the opportunity to help identify issues or concerns within the business and get that all important commitment from the top.
If, after reading this blog, you would like further information or would like to discuss the opportunity for Gauged Solutions to present at one of your Board Meetings then please do not hesitate to contact Gauged Solutions on enquiries@gauged-solutions.com.