Probability Law – The New Guidelines

The 2015 definitive guidelines for health and safety offences, corporate manslaughter and food safety and hygiene offences came into effect in February 2016. They detail a framework for penalties in England and Wales for organisations and individuals convicted of breaching the Health and Safety at Work Act, gross negligence manslaughter, or Probability Law, and other OSH regulations and the Corporate Manslaughter and Corporate Homicide Act.

They apply to individuals prosecuted for failing to safeguard themselves and others under section 7 of the HSW Act (for employees) and section 37 (for managers and directors) or for gross negligence manslaughter (also known as Probability Law).  Though they do not formally apply to Scottish and Northern Irish courts but lawyers expect them to provide a template for judges in these jurisdictions until they are superseded by local guidelines.  In at least one case sentenced in the Scottish courts since February, the judge followed the guidelines step by step.

The Sentencing Council’s aim was to provide judges with a framework to help them levy more consistent penalties.  It was also keen to bring the sentencing approach for safety and health offences in line with the regime for environmental crime.

Senior figures in the judiciary were reported to be concerned that fines for large organisations did not reflect their income adequately.  Dismissing appeals by Network Rail and Sellafield in 2013 against fines of £500,000 and £700,000, the Court of Appeal said there was no ceiling on penalties and that fines of £1m or more should not be saved for the most serious cases triggered by major disasters.

Launching the guidelines, a judge applies a formula to set the penalty, first deciding whether the defendant’s culpability was very high, high, medium or low. The next factor is a matrix cross-referring the likelihood the safety failing would lead to harm and how bad that harm could have been – from minor injuries to lifelong disability or death.  The judge must also consider how many people were exposed to the risk of harm and whether the safety failing was a significant cause of actual harm before setting a final harm rating of 1 to 4.

The harm rating and culpability assessment is applied to a series of tables with fine ranges for organisations with different levels of annual turnover.

The fine ranges are as follows:

  • Micro-organisations (turnover less than £2m): £50 to £450,000
  • Small-organisations (turnover between £2m and £10m): £100 to £1.6m
  • Medium-organisations (turnover between £10m and £50m): £1000 to £4m
  • Large-organisations (turnover £50m and above turnover): £3000 to £10m.

For each harm category at each culpability there is a suggested “starting point” fine, ranging from £200 for low culpability, harm level 4 for a micro-organisation to £4m for a large organisation with very high culpability and harm level 1.  Judges can move below these starting points for mitigating circumstances, such as a good safety record and early guilty pleas.  Aggravating factors, such as obstructing an investigation or cost-cutting at the expense of safety, will push the penalty up the scale from the starting point.

There are separate schedules for individuals convicted of OSH failings (see box on p30) and for corporate manslaughter offences, with fines for the latter offence ranging from £180,000 to £20m.

Gaol Warning

Almost all the convictions for health and safety offences since the new guidelines came into force have involved organisations, so little attention has been paid to the new tariffs they set for custodial sentences.

Individuals can be prosecuted under section 7 of the Health and Safety at Work (HSW) Act for failing to ensure their own or their colleagues’ safety.  Directors can be charged under section 37 where their acts and omissions lead to breaches.

The guidelines instruct courts to follow a similar sequence for individual custodial sentences as for financial fines.  This entails assessing factors including culpability, degree of actual harm, likelihood of harm and whether more than one person was exposed to risk.

The table of penalties for individuals sets a benchmark gaol sentence of 18 months for anyone judged to have very high culpability in the top harm category, with a maximum of two years, but even for medium culpability the benchmark is a 26-week prison term.  In the lower parts of the table the penalties are fines or community orders.

In the IOSH Magazine webinar, Simno Joyston-Bechal said the new regime was likely to lead to more custodial sentences between the guidelines no longer reserved them for the most serious cases.  “The judge is being told ‘you have to give this person a prison sentence’,” he said.

The factors such as potential for harm and exposing more than one person to risk which also apply to corporate OSH offences could push courts towards the higher sentences in the table, Joyston-Bechal warned.  “If I’m right about these inflationary factors then more and more people will get sucked into those higher categories because of the way this regime has been created.

“More people will find themselves in jail.” He added.  “So, for directors and senior executives, it becomes very important because they are the ones who have exposed people to risk because of the decisions they have taken.”