Update on the new sentencing guidance on health and safety breaches

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New Sentencing GuidelinesThe Chartered Institute for the Management of Sport and Physical Activity

David [email protected] 561 903


Sentencing Guidelines: The Background

Who do they apply to?

•New sentencing guidelines from the Sentencing Council apply to the sentencing of organisations convicted of corporate manslaughter, health and safety, food safety, and hygiene offences, and aim to ensure a consistent, fair and proportionate approach.

What do they mean?

•The guidelines will result, in some cases, in offenders receiving higher penalties than previously, particularly large organisations convicted of creating a risk of death or serious injury.

When will they apply?

•The guidelines came into force in the Courts on 1 February 2016.

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Sentencing Guidelines: Procedure

1.Determining the offence category

2.Starting point and category

range

3. Is the fine proportionate to

the means?

4. “Other factors” to warrant adjustment

5. Reduction for Assistance

6. Reduction for Guilty Plea

7. Compensation and Ancillary

Orders

8. Totality Principle

9. Reasons


Sentencing Guidelines: The Numbers


Sentencing Guidelines: Recent Sentencing Decisions

National Grid £2m fine plus costs of £36,102.90

Balfour Beatty £1m fine plus costs of £14,977

C.R.O Ports London Limited

Baldwins Crane Hire

£1.8m fine plus costs of £14,328

£700k fine plus costs of £200,000


Sentencing Guidelines: Commercial Concerns

The Number of prosecutions for health and safety offences is likely to increase. In addition to the prospect of larger fines, the new Health and Safety guidelines also raise the following wider commercial concerns:

1.Reappraisal of risk registers and implications;

2.Ensuring that risk assessments are conducted and reviewed on a regular basis;

3.Greater focus upon issues of corporate governance;

4.Continued need to ensure individuals are aware of their duties; both individually and as a key element of organisational compliance; and

5.Increased need for robust incident management procedures.


Involvement of the Health and Safety Inspector

Issues covered:

1.Initial Enforcement Power

2.Powers of Inspection

3.The Shield of Legal Privilege

4.Witness Statements

5.Interviews under Caution

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Initial Enforcement Power

Improvement Notices•Section 21 HSWA:

– If an inspector is of the opinion that a person—

a) is contravening one or more of the relevant statutory provisions; or

b) has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated,

Key considerations:

•Test applied at the time of issue, not incident

•An improvement notice requires the company to remedy the contravention/s identified by the HSE within such period as specified by the notice.

•Publically searchable

•Right of Appeal through ET – strict timescales

•Failure to comply with notice = criminal offence

•Consider carefully whether to lodge an appeal

•Invokes right of recovery of fees under FFI

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Prohibition Notices• Section 22 of the HSWA

– If inspector is of the opinion that, any activities involve, as carried on or likely to be carried on by or under the control of the person in question, a risk of serious personal injury, the inspector may serve on that person a Prohibition Notice

• A prohibition notice directs that the activities to which the notice relates shall not be carried on by or under the control of the person/company on whom the notice is served unless the matters specified in the notice and any associated contraventions of provisions have been remedied

• Similar implications to IN

• Most restrictive means of enforcement action

• Consider carefully whether to lodge an appeal

Initial Enforcement Power

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Powers of Inspection

Section 20 of the HSWA sets out the powers of health and safety inspector – all duty holders must be aware of these.

These powers allow the health and safety inspector to:

•At any reasonable time (or, in a situation which in his opinion is or may be dangerous, at any time) to enter any premises which he has reason to believe it is necessary for him to enter

•To take with him any other person duly authorised by his enforcing authority; and any equipment or materials required for any purpose for which the power of entry is being exercised

•To take such measurements and photographs and make such recordings as he considers necessary for the purpose of any examination or investigation

•To take samples of any articles or substances found in any premises which he has power to enter, and of the atmosphere in or in the vicinity of any such premises

•In the case of any article or substance found in any premises which he has power to enter, being an article or substance which appears to him to have caused or to be likely to cause danger to health or safety, to cause it to be dismantled or subjected to any process or test

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• To require any person whom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation to answer such questions as the inspector thinks fit to ask and to sign a declaration of the truth of his answers;

• It should be noted that no answer given by a person in pursuance of a requirement to answer questions asked by the inspector shall be admissible in evidence against that person.

• To require the production of, inspect, and take copies of or of any entry in any books or documents which by virtue of any of the relevant statutory provisions are required to be kept; and

• Any other books or documents which it is necessary for him to see for the purposes of any examination or investigation

• To require any person to afford him such facilities and assistance with respect to any matters or things within that person’s control or in relation to which that person has responsibilities as are necessary to enable the inspector to exercise any of the powers conferred on him by this section

Powers of Inspection (continued)

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Legal Privilege

• Legal advice privilege and litigation privilege

• Importantly, section 20 powers cannot compel the production of documents which are entitled to be withheld on grounds of legal professional privilege

• On 5th November 2015 the High Court confirmed that legal advice privilege is not restricted to communications that actually contain legal advice

• Legal advice privilege may extend to factual summaries and meeting minutes where they are created in a legal advice context and form part of a continuum of communications between lawyer and client.

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Witness Statements

• Voluntary Statements

– A witness statement can be provided voluntarily in compliance with the Criminal Justice Act 1967 - known as "section 9 statements"

– A section 9 statement does not rely on the HSE inspector using his powers under s20(2) HSWA

– Any witness statement must be signed by the person to confirm that the contents of the statement are true

– Rare that statements are not provided on a voluntary basis

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Compelled Statements

•Section 20 HSWA gives the HSE inspector the power to require any person whom they have reasonable cause to believe will be able to provide information relevant to the examination or investigation

•A HSE inspector must make it clear to the witness that they are using their compulsory powers before asking any questions

•Any answers given by a person compelled to answer the HSE inspector’s questions are not admissible against that person

Witness Statements

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Interview Under Caution - PACE Requirements

• HSE can invite a company/individual to attend a formal interview under caution, often referred to as a Police and Criminal Evidence Act (PACE) interview

• HSE must suspect a company/individual of committing a criminal offence in breach of the HSWA and/or related regulations.

• Answers given capable of being admissible in evidence in a prosecution

• Court can draw adverse inferences where a defendant, at an interview under caution, fails to mention a fact relied on in their defence which, in the circumstances, they could reasonably have been expected to mention at the time of the interview

• Not obliged to accept the invitation to attend

• Various options available to a company/individual in response

• You should always have this in mind as the end game of any investigation

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Update on the new sentencing guidance on health and safety breaches

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