Wake-up call: If you have a health and safety prosecution, now is the time to act

Health and safety offences will be sentenced via a new process from February with higher fines. Dominic Watkins examines the changes

The problem

You have a health and safety or food safety prosecution. The case is just starting and you've heard that there might be some changes in health and safety and food safety offences sentencing. What do you do?

The law

Health and safety, corporate manslaughter and food safety offences are subject to unlimited fines. Under the current health and safety sentencing guidelines, which apply to cases where the offence caused death, fines start at £100,000.

The law regarding this is not changing. However, from February 2016 new sentencing guidelines for the courts mean fine levels are going to increase dramatically.

Expert advice

The new sentencing guidelines will dramatically change the way in which health and safety sentencing takes place. They will require potential defendants to approach the process in an entirely different fashion.

The court will then put these two factors together in order to identify a starting point and range for the fine. So a medium culpability offence (the third highest) at harm category two (the second highest) would have a fine starting point of £600,000 with a fine range of £300,000 to £1.5m. If that sounds expensive, consider that there are a further nine levels of offending that are even higher than this.

Defendants need to clearly make the case for the harm category and culpability level that they believe they should be in. Take a look at how the fine level changes for the same ‘harm category’ at each culpability level, for example. Taking the highest harm category at each level, you see the maximum starting point at each level of culpability skyrocket from £300,000 at low culpability, to £1.3m if it is medium culpability, £2.4m at high culpability and £4m at very high culpability. Even at the lowest level it is three times the starting point for causative fatal cases under the current regime. It is many more times higher than the average fine of £46,000 that we saw over the last year.

Once harm and culpability have been assessed, the court will consider other factors, such as the aggravating and mitigating features, any guilty plea, and the impact that the fine might have on others.

With food safety and corporate manslaughter fines also experiencing a similar seismic jump, it is clear that the stakes are higher and this area requires considerable focus.

To-do checklist

• If you have a case that is currently in the court system, or you have had an interview under caution and think you may be entering a guilty plea, you need to act fast. Being sentenced before February could save you £500,000 or more on the same offence.
• Familiarise yourself with the new guidelines, particularly the culpability and harm categories. An understanding of these will enable you to quantify the risk in making business decisions that affect safety, so you are better placed to protect your business.
• Make the most of the time between now and February to review your systems and do a gap analysis â€" time and money invested in audits and process now will save you money many times over.
• Focus on your key risk areas â€" after all, these are where things are most likely to go wrong.

Beware

The guidelines require a fine starting at £1.3m for medium culpability offences with a risk of death. Actual death and more serious offences will see fines considerably higher.

Contact

Dominic Watkins is a partner in the regulatory team at DWF and head of its food law practice: dominic.watkins@dwf.law