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Tough new health and safety sentencing guidelines will come into force in February

Out-Law News | 04 Nov 2015 | 10:30 am | 2 min. read

Large companies in England and Wales can expect fines of around £10 million for the most serious breaches of health and safety law when new sentencing guidelines come in force in February, an expert has said.

Laura Cameron of Pinsent Masons, the law firm behind Out-Law.com, said that some of those currently facing criminal proceedings in these cases could be better off pleading guilty now in order to "expedite" their cases. The Sentencing Council's new guideline will apply to health and safety, corporate manslaughter and food safety and hygiene cases (50-page / 280KB PDF), and comes into force on 1 February 2016.

"Businesses have been sent a clear message today that the regulatory authorities expect health and safety to remain a key corporate priority," Cameron said. "Boardrooms across the country will be taking note and, if they are not already doing so, directors should be pushing health and safety issues to the top of their agenda."

"Given the stark difference between the present and future regimes, many of those currently subject to proceedings may be well advised to enter early guilty please in appropriate cases in order to expedite their cases. Sentencing under the current regime may be preferable," she said.

The new guideline is intended to ensure a consistent approach to the sentencing of individuals and organisations convicted of health and safety, corporate manslaughter and food safety and hygiene offences by courts in England and Wales. They will not apply in Scotland, although as most health and safety laws apply across the UK they may well be considered by the Scottish courts, Cameron said.

The Sentencing Council said that it expected some offenders would receive higher penalties under the new guideline, but that it did not anticipate "higher fines across the board". Large organisations committing the most serious offences in particular would be targeted by penalties that were "fair and proportionate to the seriousness of the offence and the means of the offenders", it said.

Once in force, courts will be required to first assess the overall seriousness of the offence based on the offender's culpability and the risk of serious harm, regardless of whether any harm was in fact caused. The guideline then sets a starting point and a range of possible fines based on the seriousness of the offence. Different starting points and ranges apply depending on the size of the organisation, based on turnover or the equivalent. Fines could exceed £10m for serious health and safety breaches or £20m in corporate manslaughter cases, and even more for very large companies.

The guideline also includes a non-exhaustive list of mitigating and aggravating factors that the courts can take into account when setting the level of fine. Mitigating factors may include where a business has no previous convictions, has taken steps to remedy the wrong and has demonstrated a particularly high level of co-operation with the investigation; while aggravating factors may include a history of relevant offences or where the offence was committed for financial gain. Courts will also have to consider whether there are any other factors justifying an adjustment, but whether the fine will put the offender out of business may be "an acceptable consequence" in some bad cases.

Individual company directors found guilty of "consent, connivance or neglect" in relation to the offence will  face potentially unlimited fines and prison sentences of up to two years, according to the guideline.

Cameron said that it was not entirely clear from the guideline how courts would calculate the larger potential fines.

"Organisations will be required to submit detailed financial information including turnover, pre-tax profit, director remuneration, pension provision, assets and debt exposure for the past three years," she said. "Further, the judiciary will be able to take into account the broader context of the business - for instance, it may be that a parent company's turnover is taken into account when calculating the fine for a subsidiary."