New sentencing guidelines - can you afford to get health and safety wrong?

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Hard on the heels of the abolition of maximum fines in the Magistrates’ court, new sentencing guidelines are likely to lead to tougher sentences for directors and businesses convicted of serious health and safety offences.

At the heart of the new sentencing guidelines are two concepts – blame and harm.

There are four levels of blame. The highest level, perhaps unsurprisingly, is where there has been a deliberate breach. Level two is for serious or fundamental failures to address health and safety risks. Level three is where systems are in place, but are not sufficiently followed or implemented and the lowest category reflects minor, isolated incidents. On a positive note therefore, having health and safety systems in place is going to help keep the fine down, even if there has been a breach.

With harm, the court will now take a different approach and look at the seriousness of the harm that might have occurred as a result of the breach and the chances of it actually happening. The offence is then put into one of four categories but can be moved up into a more serious category if a number of people were exposed to the risk of being harmed and/or the breach significantly contributed to actual harm. Importantly, this means that if an accident causes a minor injury, but there is a high chance that it might have caused death or serious injury (which is not uncommon), the court will sentence on the basis of the more serious injury. Also, with situations like accidents at work, often a number of people will be at risk (even if they are not harmed), so this adjustment is also likely to kick in more often than not.

The potential impact of the way in which the court now looks at harm can be seen by looking at a ‘medium’ sized company with a turnover of between £10 million and £50 million which is found to have deliberately breached the law. The ‘starting point’ fine in the guidelines for the lowest category of harm is £190,000 compared with £1.6million for the highest category. Businesses and directors should be concerned at the prospect of a significant hike in the level of fine or the increased possibility of a prison sentence, based on what might have happened, rather than what actually did happen.

As courts become more used to using the guidelines, we will be able to assess the impact on health and safety sentences – there remains however the real risk of courts imposing much tougher penalties, and the message must be for businesses to invest in preventing a prosecution in the first place.