Last reviewed 7 March 2016
Nigel Bryson looks at the new stiffer fines for health and safety offences including breaches of the Asbestos Regulations.
From 1 February 2016, new sentencing guidelines will apply to Corporate Manslaughter and Health and Safety Offences. They will apply to organisations and offenders on or after the 1 February 2016, regardless of when the offences took place. It is also likely that the fines will increase significantly after this date.
If these are just guidelines, why are they important? Under the Coroners and Justice Act 2009 every court must “follow any sentencing guidelines which are relevant to the offender’s case”. Hence, the guidelines are central to determining fines in relation to corporate manslaughter and health and safety offences. The guidelines must be followed by the courts unless it is thought that by doing so, it would be “contrary to the interests of justice”.
Breaches of asbestos regulations are generally treated as a serious issue by the courts and large fines have been recorded. Courts may be required to impose greater fines next year.
New guidelines: health and safety offences
The new guidelines provide a nine-step guide as to how the courts should consider health and safety breaches.
Determining the offence category
In considering the offence, the court will look at the “culpability” and harm done by the offence. In determining “culpability” or what blame the offender has for the offence, the guidelines establish a range of factors from very high — where a “deliberate or flagrant disregard for the law” occurred, through to low — where “failings were mirror and occurred as an isolated incident”. Then harm needs to be considered.
It should be noted that health and safety offences will be mainly judged in relation to failures in managing risk. Proof that someone has been harmed is not required. Where someone has been injured, the risk of harm is pretty clear. As pointed out in the guidelines, the “offence is in creating a risk of harm”.
The guidelines establish a matrix to identify the risk of harm created by the offence. This is done by taking into account the seriousness of the harm and the likelihood of harm arising. Hence, the seriousness of harm might range from death or significantly reduced life expectancy at one extreme (Level 1) to a one where the harm could be corrected (Level C). The likelihood is divided into high, medium and low.
The court would also need to consider the numbers of people at risk — the greater the number, the greater the risk of harm — and whether the offence was a significant cause of actual harm.
Starting point and category range
At this stage, the court would look at an organisation’s annual turnover. The guidance provides a range of “starting points” for fines depending on the turnover of the organisation. So for a large organisation with a turnover of £50 million or more, with an offence category of very high culpability and “harm category 1”, the “starting point” for a fine would be £4 million. However, the category range would be between £2,600,000 and £10 million.
At the opposite end, a micro level organisation — a turnover of not more than £2 million — with an offence category of very high culpability and “harm category 1”, the “starting point” for a fine would be £250,000 with a range from £150,000 to £450,000. At the low culpability category, low harm category 4, the starting point would be £200 with a range of £50.00 to £2000.
The range exists to allow courts to consider aggravating or mitigating circumstances. So if the organisation had previous sentences for breach of health and safety, falsification of documents, etc these may cause the court to increase the fine from the “starting point”. On the other hand, if the court found evidence of an organisation voluntarily taking steps to remedy the problem, a good health and safety record, etc the fine may be reduced from the “starting point”.
Hence, at stage two the court will have a fine in mind from the tables the guidelines provide.
At this stage, the court would check to see whether the proposed fine is proportionate to the overall means of the offender. The offender’s financial circumstances need to be taken into account. Several factors are identified so that the fine meets the legal requirements in remedying a breach of the law while ensuring it is proportionate to the circumstances of the offender.
The court may consider other factors that could lead to the fine being adjusted. These are factors such as the fine interfering with the organisation’s ability to pay compensation to victims or impact on employment of staff for example.
Reduction of fine
The offender may have given assistance to the prosecution during the investigation and this could be taken into account to give a reduced fine.
Reduction of fine for guilty plea
Where an early guilty plea has been made by an offender, this may be taken in account by the court and the fine reduced.
Compensation and ancillary orders
In all cases, the court must consider whether to make ancillary orders. These include remediation orders where the offender may not have fixed the original cause of the legal breach. In some circumstances, the court may make a remedial order without a fine.
Where explosives are involved, the court can issue a forfeiture order so that explosives are surrendered by the offender. Also, compensation awards can be made. However, normally compensation will be dealt with by the civil courts.
Where the offender is being sentenced for more than one offence, the court needs to consider whether the total sentence for all the offences are just and proportionate to the “offending behaviour”.
The court must give the reasons for the sentence and explain the effect the sentence is intended to give.
A similar process for determining fines, etc in cases of corporate manslaughter is given in the guidelines. However, given that in such cases someone will have died, the range of fines and “starting points” for fines is significantly higher. The court can also issue “publicity orders” where information about the prosecution is made public.
Change in sentencing?
Given that the range of fines is being linked to the seriousness of the offence, there is likely to be an increase in fines for those found guilty under health and safety offences. The categorisation of culpability and harm may also mean that custodial sentences may increase.
Overall, the sentencing regime has changed. Currently, the courts have tended to look at the outcome — whether people have been killed or injured. The new guidelines make it clear that courts will be looking at the risk of harm occurring. It is likely that for asbestos related issues, courts would not be sympathetic to employers who expose workers or members of the public to asbestos fibres
For example, there is no “threshold” concentration level of asbestos fibres that can be safety breathed in. A court may conclude that significant breaches of the asbestos regulations would invoke the most serious category of harm, based on risk.
After February 2016, breaches of asbestos regulations could see significant increases in fines.