Guidance issued by the Sentencing Council for England and Wales is fortunately unlikely to affect most of us. In fact, probably very few of us know what this body actually does, which is to help bring about consistent sentencing in the Courts. Even then we would not expect that us as individuals nor our company should be affected by the Council’s work – as upright citizens well distanced from the criminal fraternity! Yet in one important respect companies and individuals within these businesses are potentially affected by the Council’s guidance, in relation to food hygiene and Health and Safety offences.
In February 2016 the Sentencing Council issued new guidance for sentencing in relation to proven to food hygiene, Health and Safety and corporate manslaughter offences. A particular aim of the Council was to define future sentencing in relation to specific considerations such as, size of business (determined by turnover), the culpability of the offender, the likelihood of harm and the actual harm done. Moreover, to their credit the Sentencing Council have not simply issued their edicts and then just walked away as public bodies often do. No, instead the Council have in fact just published an assessment, detailing the impact of this new guidance since its introduction. The results make for interesting and cautionary reading.
The new price of penalties
The assessment found that Health and Safety fines for large organisations have increased as expected. But these increases are not just confined to large businesses. In the pre-guideline period, approximately 66% of fines issues totalled £20,000 or less, and just 17% totalled £60,000 or more. Following the new guidelines the comparable figures stood at 31% and 51%. In relation to the prosecution of individuals, there is evidence to suggest Courts are now more prepared to consider custodial sentences, (and in particular suspended sentences) leading to a consequential drop in the use of fines.
For food hygiene offences the picture is similar, although somewhat less dramatic picture. Following the introduction of the guidance mean fine amounts for businesses have increased from £2,200 to £7,000. There has also been a small increase in the percentage of individuals receiving fines over £2,000, rising from 13% to 17%. It is interesting to note that, notwithstanding the manpower reductions made to enforcement bodies, the number of convictions for both Health and Safety and food hygiene offences for businesses or individuals has either risen or remained broadly stable.
So, we all need what one might call a “stay out of gaol” card, and fortunately one exists, in the form of the definition of “high culpability” in the Sentencing Guidelines viz:
“Offender fell far short of the appropriate standard for example, by:
- Failing to put into place measures which are recognised standards in the industry
- Ignoring concerns raised by employees or others
- Failing to make appropriate changes following prior incidents exposing risk to Health and Safety
- Allowing breaches to subsist over a long period of time
- Serious and / or systemic failure within the organisation to address risks to Health and Safety”
It’s a good checklist for making sure you stay on the right side of the law!
