The health and safety debate rages on

In November 2014 the Sentencing Council (SC), the independent body which produces sentencing guidelines for the courts, launched a consultation entitled ‘Health and safety offences, corporate manslaughter and food safety and hygiene offences guidelines’, which closes on 18 February 2015.

Guidelines for the sentencing of corporate manslaughter and health and safety offences causing death committed by organisations were published by the Sentencing Guidelines Council (SGC), the SC’s predecessor, in 2010. However, there is still a lack of guidance for the sentencing of offences not causing death and offences committed by individuals (as opposed to organisations), leaving the courts to rely upon the Magistrates’ Court Sentencing Guidelines and authorities from the Court of Appeal. This unsystematic approach has resulted in varied sentencing outcomes for similar offences. Therefore, one of the primary aims of the new guidance is to provide a more consistent sentencing approach.

Inadequate sentencing

The consultation highlights that in 2013 only 420 sentences were passed for health and safety offences and 280 for food safety offences. There has been criticism that the sentences passed have not been fulfilling the purposes of sentencing, which include punishing, deterring and protecting members of the public. Despite the relatively low number of sentences being passed for health and safety offences, the government has remained of the mindset that there is a ‘compensation culture’, particularly in respect of health and safety regulations.

Commentators have suggested that the current fines imposed for health and safety offences and food safety offences are too low in relation to the harm caused, and not enough account is taken of the culpability and the means of the offender. The new consultation therefore aims to obtain the views of stakeholders regarding an offender’s financial means, culpability and the harm they have caused. The proposed guidance, if implemented, is likely to bring about substantial increases in fines and custodial sentences.

Fines linked to turnover

One of the most significant proposals in the consultation is for a direct link between the level of fine and a defendant’s turnover. Previously, the SGC considered whether to impose fines linked to a percentage of annual turnover as part of the consultation for the existing 2010 guidelines. The SGC chose not to adopt the proposals on the basis that they could have unfair consequences and would be difficult to apply to certain organisations. As a result, there is only a very tenuous link between an offence and the offender’s means under the current 2010 guidelines.

Under the proposed guidelines, companies will be categorised as micro (a turnover of less than £2m), small (a turnover of £2m to £10m), medium (a turnover of £10m to £50m) and large (a turnover of over £50m). The guidelines will use a matrix system, categorising the offence and the defendant to produce a starting point for the fine on conviction. The more serious the harm(or potential harm) caused and the greater the defendant’s culpability, the higher the range of fines that will be considered. This range will then be applied to the size of the defendant company to produce the starting point for the fine. The proposed guidance would mean that fines for large companies committing the most serious health and safety offences could reach up to £10m and, in the case of corporate manslaughter, the fines could be up to £20m. A level of discretion will remain to allow for consideration of the wider circumstances, but the courts will be much more closely tied to a set range of fines, and as a result a more consistent approach will be applied to sentencing of health and safety offences.

If the proposals in the consultation are agreed, the likely result will be a substantial increase in potential fines and custodial sentences so as to “bring home to both management and shareholders the need to comply with legislation and achieve a safe environment for workers and members of the public”, as stated in the aims of the draft guidelines.

It remains to be seen what impact the consultation will have in the longer term. A consultation which took place in 2005, following the introduction of the Corporate Manslaughter Act (which received Royal Assent in 2007), proposed fines linked to turnover which were not adopted. If there are sufficiently persuasive objections in the responses to the consultation, then the proposals may not transition into specific guidelines. With the government continuing to reduce health and safety legislation and promote ‘big business’, particularly with the introduction of section 69 of the Enterprise and Regulatory Reform Act (ERRA) 2013, it is likely there will be significant dissent among insurance industry stakeholders over allowing the introduction of stricter sentencing outcomes for breaches of health and safety regulations.

SARAH Bill

The Social Action, Responsibility and Heroism Bill (SARAH) completed the report stage in the House of Lords on 15 December 2014. The Lord Chancellor, Chris Grayling, has promoted SARAH on the basis that he wants to send a ‘strong signal’ that, if people were trying to do ‘the right thing’, the law would be on their side.

Commentators have indicated that SARAH is an attempt to introduce health and safety legislation though the back door, particularly as section 69 of the ERRA 2013 abolishes the injured person’s ability to bring a claim for breach of duty under health and safety regulations (they now have to rely upon the law of negligence).

There were two votes undertaken in the House. The first considered whether a proposal for judges to decide whether individuals were acting heroically or for the benefit of society should remain in the Bill. Lord Lloyd attempted to delete the clause, saying it served no useful purpose as judges already had regard to this under other legislation. He added: “The justification for including this clause in this Bill is nothing other than as a publicity exercise on the part of the government.”

Lord Lloyd accused the Lord Chancellor of a ‘flagrant misuse’ of the legislative process. He also warned that the bid to send a signal to the courts about the treatment of negligence claims would be treated with ‘derision’. Lord Pannick QC added that the legislative proposal from Grayling ‘debases the parliamentary currency’. He suggested it would have been cheaper and more effective for the justice secretary to communicate his ‘message’ through a newspaper advert or on social media sites such as Twitter.

But justice minister Lord Faulks defended SARAH as providing ‘valuable reassurance’ to would-be heroes and volunteers. The amendment to remove the wording relating to whether individuals were acting heroically or for the benefit of society went to a vote, with 77 voting in favour of removal and 222 against. The amendment was therefore not made.

A second vote concerned a section of the Bill that urges judges to consider whether defendants have been ‘generally responsible’ in their actions. The clause remained unchanged after members voted 190 in favour of removal and 238 against.

Despite widespread criticism as to the necessity of SARAH, the Bill passed its third reading in the House of Lords on 6 January 2015, and will now return to the House of Commons for consideration of the Lords’ changes. The debate over the need for such a Bill will therefore rage on in 2015. SJ

Zahra Nanji is a solicitor at Leigh Day