New H&S Sentencing Guidelines

The consultation on new sentencing guidelines for health and safety, corporate manslaughter, food safety and hygiene offences has closed after a three-month window for feedback. It is generally accepted among safety professionals that the final guidelines will look very similar to the consultation draft. International law firm Eversheds ran their own consultation amongst leading lawyers to consider the impact of the new guidelines.

The responses indicate a general consensus that fines will rise, particularly for large corporate defendants, with “a three or four-fold increase” being a common estimate. The prospect of paying fines in instalments over a period of time appears to be limited to corporate defendants, and instalments are not expected to be introduced for individual defendants. The guidelines are also expected to include the power for the court to delay payment of fines, leading to the possibility of fines being held back to ensure that the fines are not left unpaid by way of bankruptcy.

However, concerns have been raised that the guidelines will mesh poorly with the current standard of proof for health and safety offences, particularly the requirement for the accused to prove that they did all that was reasonably practicable to ensure safety. It was felt that the new sentencing guidelines would weaken the justification for that reversed burden of proof and would lead to longer, more drawn-out legal proceedings as defendants challenged the prosecution’s assessment of the facts of the case through ‘Newton hearings’. There were also concerns raised that the “bureaucratic and formulaic” approach to the new guidelines would sacrifice proportionality in sentencing in favour of consistency and uniformity. One commentator also pointed out that the actions of the victim(s) in health and safety offences were not taken into account in the same way that contributory negligence would affect civil claims.

The finalised guidelines are expected to be published in late 2015 or early 2016. In the meantime the consensus is that penalties will increase. Aside from the moral obligation to protect people from occupational risk, this should serve to further motivate all to ensure their houses are in order.

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