This second part of the overview of the new health and safety sentencing guidelines will address the new penalties for not complying with the regulations.
The change from outcome to risk based sentencing is a significant one. Judgement will now be based on the risk of harm created – with more stringent penalties if actual harm did occur. This reflects the view that punishment should more closely match the exposure to risk people are put at.
Previously, cases that actually caused serious injuries or a fatality were the ones most likely to have been prosecuted, rather than those which simply involved exposure to a serious risk of harm. Now, if you expose a person to a high risk of death or serious harm, even if that harm has not occurred, the punishment will be aligned to the harm which could have happened.
A six to 18-month imprisonment is a reasonable estimate of the likely penalty to be applied if a director or employee is found to be aware of a breach of law which exposes people to at least a medium likelihood of death or serious harm.
The guidelines also make corporate manslaughter sentencing much clearer. There will be no need to determine the level of “harm” as prosecutions will always follow a fatality, but prosecutors will assess culpability level as either “serious” or “more serious”.
Fines will be proportionate to the business
The size and resources of a business will now be taken into account when allocating a penalty.
We have recently seen this taken into account with fines in excess of £100m ordered in the recent judgement against Thames Water Utilities in July 2015 for an environmental breach.
The guidelines make no bones about the fact that fines must be significant enough to have a real economic impact on the individual business. The fine levied should be at a level so it sends a clear message to directors, management and shareholders that noncompliance with the law does not pay and is not worth the risk.
The culpability and the level of harm measurement for individuals will now align to those used for a business. A similar matrix will be used to determine a starting point and category range for a suitable punishment.
The message for individuals who are found guilty is that a custodial sentence is a real possibility. For instance, an offence involving low culpability, but a high level of harm would expose you as an individual to the risk of a 26-week prison sentence.
This series on health and safety sentencing concludes tomorrow with a look at what actions you need to take.
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