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Fit for purpose? Austin Welch discusses the Sentencing Council assessment of the health and safety sentencing guidelines

The Sentencing Council definitive guideline for health and safety offences, corporate manslaughter and food safety hygiene offences (“the Guideline”) has been in force for over three years. The Guideline significantly increased the starting points for the level of fines to be imposed on organisations who had committed health and safety offences.

On 4 April 2019, the Sentencing Council published an assessment of the Guideline’s impact and implementation (“the Assessment”).[1] However, the Assessment does not consider the effectiveness of the Guideline in promoting health and safety in the workplace. Austin Welch considers the main findings of the Sentencing Council’s Assessment and delivers his own opinion as to whether, on the evidence produced by the Sentencing Council and the HSE the Guideline is achieving the purpose for which it was introduced.

The Purpose of the Guideline

In the Sentencing Council’s summary of the Assessment it is stated that:

“The Guideline aimed to ensure that the levels of fines imposed for these offences were proportionate to the means of the offender and reflected the seriousness of the offence committed.”[2]

This statement, that reflects section 164 of the Criminal Justice Act 2003, is true, but only partly so. The Guideline was introduced against years of criticism that fines for health and safety offences were too low and the 2014 Court of Appeal judgment in R v Sellafield Limited and Network Rail Limited[3] which suggested that higher fines for health and safety cases were required to achieve the statutory purposes of sentencing.

Section 143 of the Criminal Justice Act 2003 sets out the purposes of sentencing any offender as being: (a) punishment of the offender; (b) the reduction of crime (including by deterrence); (c) the reform and rehabilitation of offenders ;(d) the protection of the public; and (e) the making of reparation by offender to persons affected by their offences.

In the seminal case of R v F Howe & Sons (Engineers) Ltd,[4] quoted with approval in the Sellafield judgment, Scott Baker J stated that:

“The objective of prosecutions for health and safety offences in the workplace is to achieve a safe environment for those who work there and for other members of the public who may be affected. A fine needs to be large enough to bring that message home where the defendant is a company not only to those who manage it but also to its shareholders.”[5]

The justification behind the increased level of fines in the Guideline was not, therefore, only to make sure a fine is proportionate to the means of the offender, but to help achieve the objective of improving health and safety in the workplace by “bringing home the message of the importance of health and safety to directors and shareholders.” As the Guideline itself states:

“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.”[6]

The Findings of the Assessment

The findings of the assessment are noteworthy, but not entirely surprising to health and safety lawyers. The more eye-catching findings include the following:

There has been a dramatic increase in the average fine imposed on organisations for health and safety offences. In the 10-month period before the Guidelines came into force (“the Pre-Guideline Period”) the median fine amount was £12,000. In the 10 months period after the Guideline came into force (“the Post-Guideline Period”) the median fine had increased to £60,000.[7]
In the Pre-Guideline Period, two-thirds of organisations received a fine of under £20,000 and only 17% received a fine of £60,000 or more. In the Post-Guideline Period, 31% of organisations received a fine under £20,000 whilst 51% received a fine of over £60,000.
The median fine imposed on organisations has increased for all organisations, be they micro, small, medium, large or very large.[8] The most dramatic increase in median fines has been for large/very large organisations.
The median fine for a micro/small organisation has risen from £20,100 in the Pre-Guideline Period to £45,200 in the Post-Guideline Period.
The median fine for medium organisations increased from £20,000 in the Pre-Guideline Period to £100,000 in the Post-Guideline Period.
The median fine for large/very large organisations increased from £25,000 in the Pre-Guideline Period to £370,800 in the Post-Guideline Period.
An analysis of the sentencing remarks of Crown Court judges in health and safety cases found that in 81% cases the sentencing judge mentioned both the seriousness of the harm risked by the offence and the likelihood of harm.[9]
The most common risk factor cited by Crown Court judges in sentencing health and safety cases in the Crown Court is “level A: death” and the likelihood was mostly either medium or high.[10]
The number of individuals sentenced for health and safety offences increased slightly from around 1870 in 2016 to 200 in 2017. Fines are the most common outcome for individuals sentenced for health and safety offences. The media fine for individuals increased from £3,000 in the Pre-Guideline Period to £5,000 in the Post-Guideline period.

Is the Guideline Achieving the Objectives of Sentencing for Health and Safety Offences?

The Assessment demonstrates that, since the Guideline came into force, the courts are imposing much larger fines in respect of health and safety offences against organisations of all sizes. The biggest change, as was intended, has been in respect of large and very large organisations in respect of which there has been a nearly 15-fold increase in the median fine imposed in the Post-Guideline Period. It was not anticipated that the level of fines imposed on small and micro sized organisations would increase as a result of the Guideline, but this has bene an unintended consequence.

Whilst imposing greater punishment on offenders, has the increase in the level of fines achieved the other purposes of sentencing such as reducing crime and protecting the public? There has been some reduction in the number of self-reported non-fatal injuries to workers since the introduction of the Guideline. However, this reduction was not particularly significant and continued a more general downward trend as the table below shows:

Estimated Self-Reported Non-Fatal Injuries to Workers[11]

2013/2014	2014/2015	2015/2016	2016/2017	2017/2018
629,000	611,000	621,000	609,000	555,000

Furthermore, the number of non-fatal injuries reported under RIDDOR and the number of workplace fatalities has broadly stayed the same both before the Guideline was introduced and in the period afterwards the same as the tables below show:

Employee Non-fatal injuries reported under RIDDOR

2013/2014	2014/2015	2015/2016	2016/2017	2017/2018
77,593	76,000	72,702	70,116	71,062

Number of workers killed at work

2013/2014	2014/2015	2015/2016	2016/2017	2017/2018
133	142	144	137	144

Conclusion

The Assessment provides some useful guidance to practitioners when advising corporate clients facing prosecution for health and safety offences. Significant fines are now, demonstrably, the norm, with the average fine for large and very large organisations being over £350,000.

However, when asked, as one often is, what such large fines actually achieve, the Assessment does not assist. It is perhaps too early to tell if the increased fines are having a deterrent effect. Some organisations, having seen their competitors receive large fines, may already have invested in new plant and machinery, safer systems of work and better training of staff, the results of which may not be seen for a number of years.

However, the figures in relation to accidents in the workplace do not show a dramatic fall in number that suggest that organisations have made large investments that significantly improve workplace safety in order to avoid a potentially large fine. The statistics for workplace injuries and fatalities demonstrate that even before the Guideline was introduced the number of workplace accidents had fallen over a number of years and was beginning to level off. If the introduction of the Guideline does not result in any significant increase in the statistics for workplace safety, many will conclude that the real effect of the Guideline has only been one of revenue generation for the Treasury. In these circumstances the money spent by organisations paying fines for health and safety offences may well have been better spent on improving health and safety systems and procedures or recompensing the victims of workplace accidents.

[1] https://www.sentencingcouncil.org.uk/wp-content/uploads/Health-and-safety-guideline-assessment.pdf

[2] https://www.sentencingcouncil.org.uk/wp-content/uploads/Health-and-safety-guideline-assessment-summary.pdf

[3] [2014] EWECA Crim 49

[4] [1999] 2 All ER 249

[5] Ibid at 255

[6] See step 3 of the Guideline

[7] The median is the value which lies in the middle of a set of numbers when those numbers are placed in ascending or descending order. As the author of the Assessment notes, “the median is often a more suitable measure than the mean as it is less influenced by extreme values.”

[8] The Guideline differentiates between organisations based on their turnover: ‘micro’ organisations are those with a turnover of under £2 million per year; ‘small’ organisations are those with a turnover between £2 million and £10 million per year; ‘medium’ organisations are those with a turnover of between £10 million £50 million; ‘large’ organisations are those with a turnover of £50 million a year; ‘very large’ organisations are those with a turnover that ‘very greatly exceeds the threshold for large organisations.’

[9] The authors of the Assessment appear to consider this figure to be the cause for optimism as it indicates that “both aspects of harm are being taken into account.” The author of this article considers the figure to be a cause for concern. Judges are required to assess the harm risked by an offence and the likelihood of harm. It is a difficult, but essential, part of the sentencing exercise in health and safety cases. It is surprising that in nearly one in five cases the sentencing judge did not mention this matter. One would have expected that every judge would have considered this matter and mentioned it in his/her sentencing remarks.

[10] The author of the Assessment again says that this is not surprising as Crown Court cases “would involve more serious offences, which are consequently more likely at the higher end of culpability and harm.”

[11] These figures are produced by the Labour Force Survey which is a national survey run by the Office for National Statistics of around 38,000 households per quarter. HSE commissions annual questions in the LFS to gain a view of work-related illness and workplace injury.