February 2016 – Health and Safety New Sentencing Guidelines – Dramatic Changes
“The most dramatic changes in Health and Safety/Food Safety offence sentencing levels in recent years’’
The Sentencing Guidelines for ‘Health and safety offences, corporate manslaughter and food safety and hygiene offences’ Council have now been published. They will have a significant impact on the sentencing of offences when they come into force next week on 1 February 2016 and will apply to any case heard on or after that date, irrespective of when the offence occurred.
The definitive Guidelines do not differ significantly to those put out for Consultation earlier this year. The key changes for health and safety offences for both organisations and individuals, as well as corporate manslaughter, are as follows:
• Inclusion of targeting vulnerable victims as an aggravating feature.
• Greater emphasis has been placed on the importance of remediation as a means of mitigation.
• The measures of culpability for individuals for health and safety offences have been changed to mirror those of organisations.
• Greater clarity that all organisations when sentenced for corporate manslaughter or health and safety offences will have consideration given to the wider impact of any fine on the organisation or innocent third parties.
The key changes for food safety offences are:
• The most serious level of harm has been broadened to include not only where there has been a serious adverse effect on individuals but also where there is a high risk of an adverse effect.
• Harm now includes where a consumer has been misled regarding a food’s compliance with religious or personal beliefs.
• Factors relevant for mitigation have been reduced.
Health and safety offences – Organisations
The Guidelines are based on the concept that ‘culpability’ and ‘harm’ are used to determine the level of fine, cross-referenced against the size of the Defendant organisation.
The measure of ‘culpability’ varies from ‘low’, where failings are minor and not systemic, to ‘very high’, where there has been a deliberate breach or flagrant disregard for the law. The level of ‘harm’ is based upon the risk of harm created by the offence, which is then exacerbated if actual harm has occurred.
Once the ‘culpability’ and ‘harm’ categories are established, the turnover of the organisation will be used to allocate a particular sentencing matrix. There are different matrices depending on the size of the organisation:
• Micro – Turnover not more than £2 million
• Small – Turnover between £2 and £10 million
• Medium – Turnover between £10 and £50 million
• Large – Turnover over £50 million
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