Sentencing Guideline for H&S Offences
The Sentencing Guideline applies to all organisations who are sentenced on or after 1 February 2016. It provides a structure by which the Court can consider the range of sentences appropriate for each type of offence and a step by step process to reach appropriate sentence.
The Court will look at the level of culpability and the harm risked and the likelihood of that harm arising together with the number of people exposed to that risk and whether the offence was a significant cause of actual harm. Then, based on the turnover of the organisation, the Guideline provides a starting point for the potential penalty and a category range and the Court will then look at any factors which increase or reduce the seriousness of the offence including relevant mitigation.
Having arrived at a preliminary figure the Court must then step back, review and if necessary, adjust the initial fine to ensure that it fulfils the objectives of sentencing for these offences. Is the proposed fine, based on turnover, proportionate to the overall means of the offender? 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 Health and Safety Legislation.
The Court should therefore examine the financial circumstances of the offender in the round to assess the economic realities of the organisation and the most efficacious way of giving effect to the purpose of sentencing. Financial and economic considerations have therefore always been a significant aspect of sentencing but the huge impact on businesses of Covid-19 brings a new dimension to these factors. How will the pandemic affect the sentencing of companies?
Covid-19 impacted H&S Sentences
At this stage there are still many imponderables given the dearth of sentencing hearings involving large fines. There have, however, been a couple of examples where the impact of Covid-19 has been very considerably reflected in the sentences imposed.
In June 2020 a Company was sentenced at Leeds Crown Court for breach of Section 2 HSWA 1974 arising from the death of an employee. The Judge came to an initial figure of £650,000 and then, when recognising the Company’s relatively low profit margin and, as a result of the pandemic, the prediction that it would make a substantial loss in the financial year, reduced it by £100,000.
At a recent hearing Luton Borough Council pleaded guilty to breaching Section 2 HSWA 1974. The Judge’s original figure was £300,000 but this was reduced to £104,000 due to the Council’s lack of revenue as a result of the pandemic.
The cases relate to entirely different sectors (public and private) and illustrate that the Court will take account of the effects of Covid-19 in addition to the usual economic factors and, if appropriate, make very significant reductions to the level of fine imposed.
Plexus’ recommended Strategy
It is therefore vital the Court is provided with the most up to date financial information and that well prepared submissions are made together with a full explanation and, where possible, documentary evidence and potentially independent expert accountancy/industry, to clearly illustrate and support the significant impact of Covid-19 on the business and the wider industry and community in which it operates.
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If you would like to know more about this matter, please speak to your contact at Plexus Law:
Chris Foulkes, Partner
T: 0113 468 1825 | M: 07557 391 631 | E: chris.foulkes@plexuslaw.co.uk
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