A basic case study using sentencing guidelines for a hypothetical scenario of a company where a foreseeable accident occurred on site causing fatality.
Sentencing guideline for an organisation where:
- Breach of duty of employer towards employees and non-employees
- Breach of duty of self-employed to others
- Health and Safety at Work Act 1974 (section 33(1)(a) for breaches of sections 2 and 3)
- Breach of Health and Safety regulations
- Health and Safety at Work Act 1974 (section 33(1)(c))
Step 1
The court should determine the offence category using only the culpability and harm factors in the guideline tables page 4.
Culpability
Where there are factors present in the case that fall in different categories of culpability, the court should balance these factors to reach a fair assessment of the offender’s culpability.
Medium
- Offender fell short of the appropriate standard in a manner that falls between descriptions in ‘high’ and ‘low’ culpability categories
- Systems were in place but these were not sufficiently adhered to or implemented
Harm
Health and safety offences are concerned with failures to manage risks to health and safety and do not require proof that the offence caused any actual harm. The offence is in creating a risk of harm.
Harm category 1 (See harm table page 5 of sentencing guidelines)
Next, the court must consider if the following factors apply. These two factors should be considered in the round in assigning the final harm category.
i) Whether the offence exposed a number of workers or members of the public to the risk of harm. The greater the number of people, the greater the risk of harm.
ii) Whether the offence was a significant cause of actual harm. Consider whether the offender’s breach was a significant cause* of actual harm and the extent to which other factors contributed to the harm caused. Actions of victims are unlikely to be considered contributory events for sentencing purposes. Offenders are required to protect workers or others who may be neglectful of their own safety in a way which is reasonably foreseeable.
* A significant cause is one which more than minimally, negligibly or trivially contributed to the outcome. It does not have to be the sole or principal cause.
If one or both of these factors apply, the court must consider either moving up a harm category or substantially moving up within the category range at step two (see guideline) If already in harm category 1 and wishing to move higher, move up from the starting point at step two (see guideline). The court should not move up a harm category if actual harm was caused but to a lesser degree than the harm that was risked, as identified on the scale of seriousness as detailed.
At step two
the court is required to focus on the organisation’s annual turnover or equivalent to reach a starting point for a fine. The court should then consider further adjustment within the category range for aggravating and mitigating features.
At step three
the court may be required to refer to other financial factors to ensure that the proposed fine is proportionate.
Please reference guidelines for further steps.
Thus, using the sentencing guidelines, a company with £60 million turnover with medium culpability where an accident which was highly likely occurred causing fatality, could potentially be fined between a range of £800,000 – £3,250,000.
This could vary dependant on factors i) and ii) as detailed above.
Factors increasing seriousness
Statutory aggravating factor:
- Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
- Other aggravating factors include:
- Cost-cutting at the expense of safety
- Deliberate concealment of illegal nature of activity
- Breach of any court order
- Obstruction of justice
- Poor health and safety record
- Falsification of documentation or licences
- Deliberate failure to obtain or comply with relevant licences in order to avoid scrutiny by authorities
- Targeting vulnerable victims
Factors reducing seriousness or reflecting mitigation
- No previous convictions or no relevant/recent convictions
- Evidence of steps taken voluntarily to remedy problem
- High level of co-operation with the investigation, beyond that which will always be expected
- Good health and safety record
- Effective health and safety procedures in place
- Self-reporting, co-operation and acceptance of responsibility
As stated in the sentencing guidelines (effective from 1 February 2016) the fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence; it should not be cheaper to offend than to take the appropriate precautions.
In addition there would be no public liability insurance cover for this as it would be deemed as a criminal act in breach of their employers duties.
For full sentencing guidelines, visit HS-offences-definitive-guideline-FINAL-web1.pdf