The Sentencing Council has recently undertaken a consultation exercise on its proposals for introducing new guidelines relating to the sentencing of organisations or individuals convicted of health and safety, corporate manslaughter or food safety and hygiene offences. The consultation closed on 18 February 2015, and the final guidelines are expected later this year or early in 2016. The reasons given by the Sentencing Council for the making of the proposals are summarised below.
Health and safety and food safety offences
As things currently stand, guidelines exist for corporate manslaughter offences and health and safety offences committed by organisations that result in death. There is only piecemeal guidance relating to health and safety offences that do not result in death and to those that are committed by individuals. Further, there is very little specific guidance relating to sentencing food safety offences and therefore courts will generally seek to apply relevant principles from the sentencing of health and safety and environmental cases.
Another issue is that the number of health and safety cases brought before the courts is relatively low compared to other types of offence, which results in a lack of familiarity for magistrates and judges. This can result in inconsistency in the sentences applied.
A third reason for introducing the proposals is that concerns have been raised that the sentences imposed in relation to both health and safety and food safety offences have been inadequate, particularly with regard to large organisations.
Finally, a number of recent developments have increased the need for a review of sentencing in these areas. These include the publication in 2014 of guidelines for environmental offences, which is an area closely related to health and safety and food safety offending, and that at some point the relevant provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will come into force, which will enable magistrates to impose unlimited fines for certain offences including health and safety and food safety offences.
While sentencing guidelines currently exist for corporate manslaughter offences, the proposals aim to change these so as to make them consistent with what is being proposed for health and safety offences. Also, because the current guidelines apply to both corporate manslaughter and to health and safety offences causing death, it might produce confusion to change only the latter and leave the former as is.
Thus, through the provision of comprehensive guidance for the sentencing of offences where such guidance is largely lacking, the proposals aim to produce a fairer and more proportionate sanctioning regime.
Impact of the proposals
In its proposals, the Sentencing Council sets out what it believes a fine should seek to achieve in the context of the offences covered. It states that fines should:
reflect the seriousness of the offence;
take into account the financial circumstances of the offender;
reflect the extent to which the offender fell below the required standard;
achieve a fair and proportionate degree of punishment and deterrance;
remove any economic gain derived from the offence.
In addition, as regards organisation, fine should be sufficiently substantial to have a real economic impact, which will bring home to both management and shareholders the need to comply with legislation and achieve a safe environment.
To achieve these aims, the proposed guidelines link fines to the turnover of the offender which the Sentencing Council sees as being less susceptible to manipulation than other accounting methods, though it is recognised that an organisation's wider financial position would also need to be considered by the court. The proposals provide for a scheme of starting points and ranges for fines, which will assist magistrates and judges in identifying sentences that meed the aims listed above.
In consequence, the Council anticipates that the proposals will result in an increase in fines in some cases, in particular where more serious offences are committed by larger organisations. For less serious offences and offences committed by individuals and smaller organisations, little change from current sentencing practice is anticipated.
Although the proposals do not cover Scotland, it is likely that they will be taken into account by Scottish courts, particularly with regard to health and safety and safety which is UK-wide legislation.
The full proposals can be viewed at https://www.sentencingcouncil.org.uk/wp-content/uploads/Health_and_safety_corporate_manslaughter_food_safety_and_hygiene_offfences_consultation_guideline_web1.pdf.