The introduction of the Definitive Sentencing Guideline for Health and Safety, Corporate Manslaughter and Food Safety and Hygiene Offences in February 2016 has resulted in a huge shift in the punishment of safety offences in England and Wales, where fines running to many millions of pounds have been imposed on the largest corporate offenders and where there is an increasing incidence of immediate custodial sentences for individuals found to be in breach.
The guideline applies in England and Wales but a Scottish court said it 'had regard to' the guideline when sentencing business owner Donald Craig to two years imprisonment for failings which resulted in the death of one of his workers and the serious injury of another. Whilst falling short of requiring compliance with those guidelines the approach of the Scottish court suggested that similar considerations may apply in Scotland.
The court in Northern Ireland has now signalled its willingness too to impose "deterrent" sentences, designed to send a message to would be offenders. This case involved an employer with a total disregard for the employees' health and safety, with no safety measures in place, no discussion about safety with employees and no risk assessment carried out and the court noted "with grave concern" that this attitude was widespread in the construction industry.
The Court of Appeal endorsed the approach adopted in England and Wales when sentencing for gross negligence manslaughter, assessing the various factors affecting the seriousness of the offence within the context of a fatality, including:
- How foreseeable was serious injury?
- How far short of the applicable standard did the defendant fall?
- How common is this kind of breach in the defendant’s organisation?
- How far up the organisation did the breaches go?
- Was there more than one death?
The custodial threshold under Article 5(2) of the Criminal Justice (NI) Order 2008 was passed and an aim of the immediate custodial sentence invoked was deterrence. Lord Justice Gillan hoped that "today's sentence will herald a radical alteration" in attitudes to health and safety in the construction industry. The ruling said that in cases such as this, where the lives of workmen are at risk, the individuals responsible should be prosecuted, with the default position on conviction being an immediate custodial sentence.
The obligation on employers is to safeguard the health and safety of employees and others as far as is reasonably practicable. So while there is no obligation on courts in NI and Scotland to adopt the guidelines, there is much to be said for conformity in sentencing. Duty holders in NI must be aware that those who adopt a cowboy attitude to their health and safety obligations can expect increasing fines and, for the individuals involved, immediate imprisonment.