Gordons construction health & safety update - Sentencing guidelines

Offences under the Corporate Manslaughter and Corporate Homicide Act 2007 and health and safety offences resulting in a fatality are now subject to new guidelines from the Sentencing Guidelines Council.

The new guidelines reinforce the message that safety in the workplace is a serious matter and that significant financial penalties should result for the organisations concerned if a health and safety breach results in death. The guidelines state that penalties should only rarely be less than £500,000 and could potentially amount to millions of pounds for a corporate manslaughter conviction. For other health and safety offences  which involve a fatal accident it is suggested that fines should only very rarely be below £100,000. These figures are perhaps a reflection of a sentencing culture for increased penalties which already exists, rather than a groundbreaking cultural shift.

Naturally being guidelines, the recommendations are flexible and by no means black and white. There remain factors to be taken into account in sentencing such as foreseeability; the extent and frequency of the breach, failure to take account of warnings and the knowledge of the breach or its likelihood which management had.

Mitigating factors will continue to include a good health and safety record and a responsible attitude to health and safety.

Whilst the law expects the same standard of behaviour from large and small organisations alike, the guidelines make it clear that the defendant's financial resources are relevant to the size of fine to be imposed, if not to the steps taken to prevent breaches occurring. A fixed correlation between the fine and turnover or profit has not been introduced but the premise seems to be that the fine should ‘hurt’ the offending company financially. Indeed, in a departure from previous practice, it is not inconceivable that a fine could be set so high as to put the defendant out of business, if the Court considered that the offence was severe enough to justify such a consequence. Certainly in the case of repeat offenders fining a company out of business rather than allowing them to continue to offend has been contemplated.

These increased penalties relate to corporate responsibility rather than individuals. Personal liability is also on the increase with Health and Safety Offences Act 2008 introducing up to two years' imprisonment for breaches of the Health and Safety at Work Act by individuals.  Whilst personal liability is still only rarely enforced, with individual directors not often seen in the dock, the climate is one of increased intolerance by society for Health and Safety breaches. This mood of unacceptability seems set to be reflected by the courts with stiffer penalties in the future.

If you would like to speak to anyone regarding the issues addressed in this article, please contact Katherine Southby.

Published: 17th June 2010

Katherine Southby

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