Title IOSH NATIONAL SAFETY & HEALTH CONFERENCE 2016 SENTENCING GUIDELINES IMPACT ON CORPORATE HEALTH AND SAFETY OFFENCES

Transcription

1 IOSH NATIONAL SAFETY & HEALTH CONFERENCE 2016 Title SENTENCING GUIDELINES IMPACT ON CORPORATE HEALTH AND SAFETY OFFENCES Richard Atkins QC & James Puzey

2 HISTORY Howe & Sons (Engineers) Ltd [1999] 2 AER 249. Guideline judgment in the Sentencing Council Guideline Compendium. Historically fines have been too low. Balfour Beatty Rail Infrastructure Services Ltd [2007] 1 Cr App R (S) para 22. Lord Phillips CJ, approving Mackay J s 13 principles derived from Howe & Sons. Sentencing Guidelines Council Corporate Manslaughter & Health and Safety Offences Causing Death Definitive Guideline 15/2/10 31/1/16

3 Three Factors: WINDS OF CHANGE i. R v Sellafield Ltd and Network Rail Infrastructure Limited [2014] EWCA Crim 49 On 17 January 2014 the Court of Appeal gave its judgment in the jointly heard appeals of Sellafield Ltd and Network Rail Ltd against fines imposed upon them for breaches of environmental and health and safety legislation respectively. In Sellafield some radioactive waste had been disposed of unsafely. It had caused no harm and was very unlikely to have caused any harm. In Network Rail a young boy had been permanently and very seriously disabled due to a poorly maintained level crossing.

4 Fines of 700,000 against Sellafield and 500,000 against Network Rail were upheld without reservation by the Court of Appeal: In relation to Network Rail s offending the Court of Appeal stressed the importance of considering the actual and potential harm and the level of culpability in the sentencing exercise. It also pointed out that simply because the fine was imposed on what was effectively a public service would not deter the Court from imposing what on any view was a very significant fine. Definitive Guideline for Environmental Offences Signalled a significant increase in the level of fine i Consultation Exercise by SGC for Corporate Manslaughter and Health and Safety Offences

5 The Present Sentencing Council Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline, 1/2/ S85 (1) (2) and (4) Legal Aid, Sentencing and Punishment of Offenders Act 2012 Removal of limit on certain fines on conviction by Magistrates Court (28/5/14) Criminal Justice Act 2003 s143 Determining the seriousness of an offence (1) In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might forseeably have caused.

6 164 Fixing of fines (1) Before fixing the amount of any fine to be imposed on an offender who is an individual, a court must inquire into his financial circumstances. (2) The amount of any fine fixed by a court must be such as, in the opinion of the court, reflects the seriousness of the offence. (3) In fixing the amount of any fine to be imposed on an offender (whether an individual or other person), a court must take into account the circumstances of the case including, among other things, the financial circumstances of the offender so far as they are known, or appear, to the court. (4) Subsection (3) applies whether taking into account the financial circumstances of the offender has the effect of increasing or reducing the amount of the fine. [cited at Step 3 p. 10 of the Definitive guideline)

7 Who does it affect? THE NEW GUIDELINE All organisations and offenders aged 18 and older who are sentenced on or after 1/2/16 regardless of date of offence. How does it work? A Organisations Breaching Duties & Regulations 1. Determine the Offence Category i. Establish level of culpability (very high, high medium or low) and harm (high, medium and low according to whether death or reduced life expectancy, serious injury or not occasioned) Consider how many people were put at risk and whether the offence was a significant cause of actual harm.

8 2. Starting Point and Category Range i. Identify the appropriate size of organisation using the tables provided (Large: 50 million +; Medium: million; Small 2 10 million; Micro: less than 2 million) focussing on annual turnover or equivalent (The Court should have comprehensive accounts for the last 3 years). Profitability is relevant both ways. Factor in aggravating and mitigating features as set out. 3. Check whether the proposed fine based on turnover is proportional to the overall means of the offender. i. The fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with H&S legislation. i Consider other financial factors listed to ensure proportionality Allow time to pay, if necessary over a number of years and in instalments.

9 4. Consider other factors which may warrant adjustment of the proposed fine. i. Does it impair the offender s ability to make restitution i iv. Does it affect the ability to improve conditions in the organisation to comply with the law Does it impact on the employment of staff, service users, customers and the local economy, but not the shareholders or directors If a public or charitable body the fine should be reduced if the offending organisation is able to demonstrate the proposed fine would have a significant impact on the provision of its services. 5. Consider factors such as assistance to the prosecution 6. Reduction for guilty pleas 7. Compensation and Ancillary Orders: Remediation, Forefeiture, Compensation 8. Totality (Offence range 50 to 10 million fine)

10 B. Corporate Manslaughter 1. Determining the Seriousness of the Offence i. How foreseeable was serious injury i iv. How far short of the appropriate standard did the offender fall How common is this kind of breach in this organisation Was there more than one death or a high risk of further deaths or serious personal injury in addition to death Category A if the answers indicate a high level of harm or culpability, Category B if a lower level. 2. Starting Point and Category Range i. Identify appropriate level from tables. i iv. Consider annual turnover or equivalent Consider other financial factors Consider aggravating and mitigating features.

11 3. Check whether the proposed fine based on turnover is proportionate to the overall means of the offender (consider profitability). 4. Consider other factors that may warrant adjustment of the proposed fine 5. Consider factors such as assistance to the prosecution 6. Reduction for guilty pleas 7. Compensation and Ancillary Orders: Publicity Orders, Remediation, Compensation 8. Totality (Offence range 180,000 to 20 million fine)

12 The Immediate Impact? WHAT IS THE EFFECT An increase in the level of fines? Undoubtedly in Crown Court, question mark over Magistrates Increase in Newton Hearings? But new guidance on credit due Recent cases: Very few as too new. Consider R v Thames Water Utilities Ltd 2015 EWCA Crim 960 which was the first CoA case to consider the Environmental Offences Guidelines. Appeal against sentence ( 250,000 + costs) for a 4 day discharge of sewage into an outstanding area of natural beauty. Appeal dismissed with the CoA commenting that the sentence was lenient.

13 First Instance cases: Travis Perkins (Apr 2016) fatal accident, worker run over, pleaded guilty to 2 H&S offences, 2 billion turnover, 2 million fine, 115,000 costs. Balfour Beatty (Apr 2016) fatal accident, trench collapse, pleaded guilty to series of H&S offences, 2.6 million fine. McCain foods (GB) Ltd, arm caught in unguarded machinery, 800,000 fine Falcon Crane Hire (March 2016), crane collapse caused by metal fatigue, double fatality, 800,000 fine Watling Tyre Services Ltd, fatal accident, pleaded guilty to 2 H&S offences, 1 million, 100,000 costs Scottish Power Generator (May 2016) employee scolded, pleaded guilty to one H&S offence million fine

14 HOW WOULD OLD OFFENCES BE DEALT WITH NOW 1. Howe & Sons i. Then: Fine 15,000 (reduced from 48,000 due to company financial circumstances), costs 7,500. Turnover 355,000, net profit 27,000. Now: Start point 54,000 (could be higher ( 80,000?) as breach was a significant cause of death, range for micro company 30, ,000. Culpability high. Harm risk level A. Likelihood at least medium, so harm category 2. If 80,000 start, 1/3 rd reduction, fine c 53,000?

15 2. Balfour Beatty i. Then: Fine 7.5 million (reduced from 10 million due to disparity with co-defendant). Turnover 52 million pa. Late guilty plea, no discount. A serious systemic failure. Now: Start point 2.4 million (range 1.5 million to 6 million, large company turnover of over 50 million). Likely to be at the top end of the category, but given the exceptionally serious nature of the offending and multiple deaths may be taken out of the range and a fine of 7 million to 10 million might not be appealable.

16 Penalties are increasing CONCLUSION Fines are now focussing on the risk of harm rather than simply the consequences Credit is likely to decline rapidly after the initial opportunity to plead Will there be an increase in Newton hearings, or will the likely reduction in credit kill off the Newton hearing The larger the company, the more severe the penalty and the greater the differential from before

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