1. Sentencing in health and safety cases – The impact of the new regime
Jon Cooper – Bond Dickinson LLP
16 November 2016
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2. A history lesson Health and Safety – It's not really a crime, is it?
R v F Howe & Son (Engineers) Limited – principles emerge
Definitive Guideline – February 2010
The new Definitive Guideline – A seismic change to the approach to sentencing

3. Background to the new Definitive Guideline
Consultation by the Sentencing Council between November 2014 and February 2015
Guideline published on 3 November 2015
Applies to all sentences passed after 1 February irrespective of the date of the offence
Mandatory for the Courts to follow the guidelines "unless the Court is satisfied that it would be contrary to the interests of justice to do so" (Section 125 (1) Coroners and Justice Act 2009)
Applies to individuals and organisations

4. Purpose of the Guidelines
Fines should :
Reflect the seriousness of the offence and the offender's circumstances
Punish, deter and counter any gain from the offence
Have a genuine economic impact to encourage management and shareholders to comply with the law and provide a safe working environment
The guidelines adopt a "stepwise approach" to determining the degree of culpability, risk of harm and the category of offender

5. The approach of the Courts
Determine offence category – considering harm and culpability
Starting point of category range – size of organisation based on turnover gives starting point and range in sentencing tables
Check whether proposed fine is proportionate
Consider other factors that might warrant adjustment of the proposed fine (upwards or downwards)

6. Determining the offence category - culpability
Very high – deliberate breach or flagrant disregard for the law
High – falling far short of the appropriate standard, for example by
Failing to put in place measures that are recognised standards in the industry
Ignoring concerns raised by employees or others
Failing to make appropriate changes following prior incident(s) exposing risks to health and safety
Allowing breaches to subsist over a long period of time

7. Determining the offence category - culpability Cont
Serious and/or systemic failure within the organisation to address risks to health and safety
Medium – offender fell short of the appropriate standard in a manner which falls between descriptions in "high" and "low" culpability categories; or systems were in place but these were not sufficiently adhered to or implemented.
Low – offender did not fall short of the appropriate standard for example because
Significant efforts were made to address the risk although they were inadequate on this occasion

8. Determining the offence category – culpability - Cont
There was no warning/circumstances indicating the risk to health and safety
Failings were minor and occurred as an isolated incident

9. Determining the offence category- risk of harm and likelihood of it occurring
Seriousness /
Likelihood
Level A – death, impairment leading to lifelong dependency on third party care for basic needs, significantly reduced life expectancy
Level B – physical or mental impairment which has a substantial and long term affect on the ability to carry out normal day to day activities or on their ability to return to work or a progressive permanent or irreversible condition
Level C – anything not falling within level A or B
High
Harm Category 1
Harm Category 2
Harm Category 3
Medium
Harm Category 4
Low
Harm Category 4 (start towards bottom of large)

10. Determining category of offender
Turnover
Micro
Not more than £2 million
Small
Between £2 million and £10 million
Medium
Between £10 million and £50 million
Large
£50 million and over
Very Large
Turnover which greatly exceeds the threshold for large organisations

11. Determining the sentencing range
Offender category, culpability and harm will be used to identify a starting point and category range for the fine
It is designed to be flexible and may be adjusted upwards or downwards due to aggravating and mitigating features
Aggravating features include previous convictions, cutting cost at the expense of safety and refusal of free advice/training
Mitigating features include co-operation, effective procedures and acceptance of responsibility

12. The range of sentencing – large organisations

13. The range of sentencing – medium organisations

14. Corporate Manslaughter
There are two categories – Offence Category A and Offence Category B.
The category is determined by reference to the following questions:
How foreseeable was serious injury?
How far short of the appropriate standard did the offender fall?
How common is this kind of breach in the organisation?
Was there more than one death, or a high risk of further deaths, or serious personal injury in addition to death?

15. Corporate Manslaughter sentencing

16. Sentencing of individuals
The Guidelines also applies to the sentencing of individuals
Since the Health & Safety Offences (Act) 2008 custodial sentences have been available to the Courts for the majority of health and safety breaches
Impact of the Guideline – the custody threshold has lowered!

17. Impact of the new regime:
Much more stringent penalties
More cases likely to be contested
More litigation as to basis of plea (Newton hearings)
Consideration for organisations being prosecuted – Magistrates or Crown Court?
Section 85 LASPO – for offences committed after 12 March 2015 Magistrates' Courts have unlimited jurisdiction

18. The devil is in the detail!
Very large organisations – "Where an offending organisation's turnover or equivalent very greatly exceeds the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence"
"Normally only information relating to the organisation before the Court will be relevant, unless exceptionally it is demonstrated to the Court that the resources of a linked organisation are available and can properly be taken into account"

19. What do the new sentencing cases tell us?
Conoco Phillips – The number of persons exposed to risk is a key consideration.
Peter Thelwall – 12 months' sentencing following a guilty plea to a health and safety offence upheld.
Merlin Attractions Operations Limited – Economic impact of an incident should not be taken into account.
Conoco Phillips (again!) – if you want full credit get your plea of guilty in early!

20. Conclusions
Will the new sentencing regime achieve the stated objective?
Will draconian penalties increase workplace safety or have an adverse impact?
What about occupational health?
What do YOU think?

21. Jon Cooper Partner Jon.cooper@bonddickinson.com Direct 01752 677802
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22. Thank you