Health and Safety Sentencing: are higher fines a game-changer for safety?
- Date: Wednesday 19th October 2016
As the new binding sentencing guideline leads to huge increases in fines, Chris Warburton looks at the impact on defendants, and how sentencing is shifting from art to science. Illustration by Shonagh Rae.
In April 2012, leisure giant Merlin Attractions Operations was fined £350,000 over the death of a 72 year old man who tripped over a parapet wall at Warwick Castle and fell head first into a dry moat. Four and a half years later in September 2016, the same firm was fined £5m over failings in the management of the Smiler rollercoaster at its theme park Alton Towers, which left 16 people injured, some seriously.
The reason for the increase in the fine is the introduction in February of the Sentencing Council’s definitive guideline on health and safety offences and corporate manslaughter. Such is the extent to which the sentencing landscape has changed – multimillion pound fines have quickly become a staple of headlines in this magazine – that the 14-fold increase in Merlin’s penalty has prompted alarm but not surprise.
Before the guideline came into force, lawyers and practitioners made worried predictions, from concerns that it would force lengthier trials to courts meting out disproportionate fines. While it is still early in the life of the guideline, trends are emerging.
Under the binding guideline, the judiciary is expected to take a “stepwise” approach to sentencing, assessing the size of the company, the degree of harm risked and culpability. The guideline has a tiered table of penalties; and, using this formula, judges and magistrates can identify the appropriate starting point for the sanction.
The court must then take into account financial information, such as the profit margin of the organisation or the potential impact on employees, and any aggravating or mitigating factors. There are a total of nine steps judges must complete to arrive at the fine.
Before February, there was only a sentencing guideline for offences that caused death and corporate manslaughter. With only around 600 cases appearing before the courts each year, many judges and magistrates lacked familiarity with sentencing health and safety crimes, which led to varied outcomes.
Practitioners and lawyers had looked on the sentencing of Merlin as a litmus test of what the guideline was capable of delivering, in its first real exercise following a high profile disaster that involved multiple members of the public. Judge Michael Chambers QC returned the third largest health and safety fine ever, and the highest for a non-fatal incident.
Merlin is not alone in receiving a large penalty. Since the start of the year, 14 cases in England and Wales have attracted fines of £1m or more (see list below). Rhian Greaves, legal director of law firm Clyde and Co, says that in her 14 years in the field, the guideline has been the biggest shake up in sentencing.
“There was a false dawn with the Corporate Manslaughter Act. It has not had the effect that everyone was worried about,” she says. “It was the same with the Health and Safety (Offences) Act, which increased the ability of the courts to impose custodial sentences. Again, that wasn’t the huge change that everyone thought it might be, but [the guideline] has been.
“We now routinely see fines over £1m, whereas previously we only saw these in very high profile cases – the rail crashes, Buncefield type cases, or multiple fatalities.”
Crispin Kenyon, a partner at law firm Weightmans, agrees, pointing out that fines in excess of £1m started to appear soon after the finished guideline was released in November 2015, but before it entered into force. “The price is going up, as it were,” he says. “It was pretty much from this time last year onwards that judges began to jack up the fines.”
Incidents that did not result in anyone being harmed are also attracting larger penalties. While it has long been the case that risk should be managed, not necessarily harm prevented, such cases have until now seldom attracted large sanctions. For instance, oil and gas giant ConocoPhillips was fined £3m over three gas leaks on the Lincolnshire Offshore Gas Gathering System; no one was hurt, though 66 people were put at risk.
In another example, MJ Allen Holdings, a medium sized metalwork company from Kent, was fined £160,000 in April after a worker put his foot through an asbestos roof sheet, although he did not fall or suffer any injury.
It is also worth pointing out that of the 14 fines that exceed £1m, six were for non-fatal offences.
This hike in fines was intentional. Launching the consultation on the draft guideline in November 2014, the Sentencing Council said that penalties were failing to reflect the seriousness of the offence or take into account the financial circumstances of the offender.
The council said that “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”. Turnover was chosen as the primary indicator to calibrate the fine to the means of the business.
Before the guideline was brought in, some expressed concern that using turnover would result in disproportionate fines, despite clauses to temper this risk; just because a firm has a large turnover does not mean that it is profitable. Has the turnover-based approach been vindicated as meeting the Sentencing Council’s stated aims? Steffan Groch, head of regulatory at lawyers DWF and chair of the Health and Safety Lawyers Association (HSLA), is not sure.
Source: Health and Safety at Work