As you may be aware from our alert and blog last year, the Sentencing Council has published guidelines for health and safety, corporate manslaughter and food safety and hygiene offences for the first time.
The new guidelines replace the previous version which provided that fines should seldom be less than £500,000 for corporate manslaughter and £100,000 for health and safety offences causing death. The previous guidelines also did not cover other health and safety or food safety and hygiene offences.
The new guidelines are likely to result in significantly higher penalties for organisations convicted of such offences and will apply to organisations in England and Wales which are sentenced on or after 1 February 2016 (regardless of the date of the offence) and to all individual offenders aged 18 and over.
The guidelines do not apply to Scotland. A new Sentencing Council for Scotland came into existence on 19 October 2015 but it remains to be seen how they will approach the sentencing of health and safety offences. Until Scottish guidelines are produced, it may be that Scottish courts will refer to the new guidelines for England and Wales. Similarly in Northern Ireland, although the guidelines are not currently binding, the courts in Northern Ireland may refer to them for guidance on sentencing due to an absence of their own guidelines and the similarities in legislation.
The new guidelines were introduced for a number of reasons, including the inconsistency in sentences being imposed by courts for these types of offences and the fact that courts were often unfamiliar with these types of offences and needed guidance. There were also concerns that the sentences being imposed were too lenient, thus failing to have any significant economic impact on the organisations on which they were imposed.
The Criminal Justice Act 2003 requires that fines must reflect the seriousness of the offence and take into account the financial circumstances of the offender and under the new guidelines – “[p] articular attention should be paid to turnover; profit before tax; directors’ remuneration, loan accounts and pension provision; and assets as disclosed by the balance sheet” when determining the level of the fine to impose.
The guidelines include a number of tables setting out starting points and ranges for sentences for the various offences, for example, large organisations (those with a turnover of £50 million or more) could face fines of up to £10 million for health and safety offences, £20 million for corporate manslaughter, and £3 million for food safety and hygiene offences. It will be at the court’s discretion to go above these figures if they consider a case to be exceptional. This is significantly more than the £100,000/£500,000 figures provided in the previous guidance.