Sentencing of Health and Safety
Offences
Mike Rogers.
WH LAW LLP.
The Statutory aims of sentencing
Criminal Justice Act 2003, section 142(1)
“Any court dealing with an offender in respect of his
offence must have regard to the following purposes of
sentences –
a. the punishment of offenders,
b. the reduction of crime (including its reduction by
deterrence),
c. the reform and rehabilitation of offenders,
d. the protection of the public, and
e. the making of reparation by offenders to persons
affected by their offences.”
Guidelines
• No tariff that gives a defined
minimum or maximum
sentencing guide as in criminal
cases
• Sentences are determined on a
case by case basis
• Early guilty pleas are taken into
account and in the crown court
an indication of a sentence will
be given when an early guilty
plea is entered.
Seriousness of offence
• Seriousness of offence dictates the appropriate
level of sentence.
• Determined by individual circumstances of the
case and Sentencing Guidelines Council
guidelines on seriousness.
• Culpability (blameworthiness) of the
Defendant and Harm caused or might have
been caused.
Factors
• Aggravating and mitigating factors
that contribute to sentencing decision
• Facts of case examined to decide the
degree of culpability and harm
• Non-exhaustive list first laid down by R v
F Howe & Son (Engineers) Ltd 1998.
Factors which may indicate higher
than usual culpability
1. Offence deliberate or reckless breach of law
rather than result of carelessness
2. Action of lack of action prompted by financial
motives (profit or cost-saving)
3. Regular or continuing breach, not isolated
lapse
4. Failure to respond to advice, cautions or
warning from regulatory authority and/or
ignoring concerns raised by employees or
others.
Factors which may indicate higher
than usual culpability
5. Offender has committed previous offences of a
similar nature.
6. Offender exhibited obstructive or dismissive
attitude to authorities.
7. Offender carrying out operations without an
appropriate licence.
Factors which may indicate greater
than usual degree of harm
1. Death or serious injury or ill-health
resulted from or risked by offence
2. High degree of damage resulting from
offence
3. Still serious if damage does not occur but
risk is still present
4. Considerable potential for harm to
workers or public
Factors which may indicate greater
than usual degree of harm
5. Animal health or flora affected
6. Extensive clean-up operation or other remedial
steps required
7. Other lawful activities interfered with
Factors which may indicate lower than
usual culpability
1. Offender played a relatively minor role
or had little personal responsibility
2. Genuine and reasonable lack of
awareness or understanding of specific
regulations
3. Isolated lapse
Matters of offender mitigation
Offender’s prompt
reporting of offence and
ready co-operation with
regulatory authority.
Offender took steps to
remedy the problem as
soon as possible.
Good previous record.
• Mitigation
=the action
of reducing
the severity,
seriousness,
or
painfulness
of something
Relevant factors
Court decide whether these apply and if they are
aggravating or mitigating
• Degree of risk and extent of danger
• Gravity and extent of the breach
• Isolated period or continued over a
period
• Defendant’s resources and the effect
of the fine on its business
R v F Howe & Son (Engineers) Ltd 1998
An accident occurred at the appellant
company's premises in which a young
man was electrocuted. The cause of the
accident was a damaged cable
connecting a cleaning machine which
was being used to collect water.
The cable became trapped under the
machine which became live as a result.
The cable had been plugged into a socket
in which the fuses had been bridged with
fuse wire, and a Residual Current Device
which should have tripped the current
had been by-passed.
R v F Howe & Son (Engineers) Ltd
1998. Aggravating Factors
• Death resulted from the breach
• A failure by the Defendant to heed warnings
such as HSE advice, enforcement notices, or
concerns raised by employees or others.
• A deliberate breach with a view to profit or a risk
run specifically in order to save money.
R v F Howe & Son (Engineers) Ltd
1998. Mitigating Factors
Prompt admission of responsibility and a timely plea of
guilty.
Steps taken to remedy the deficiencies after they were
drawn to the Defendant’s attention.
A good health and safety record i.e. no previous
convictions in health and safety matters, no
improvement or prohibition notices having been served
on the defendant, and evidence that the defendant has,
in the past, followed HSE advice when it has been given.
R v Fresha Bakeries Ltd. 2002.
• Grate needed removing
from an industrial bread
oven
• Sought to be resolved inhouse
• Two employees crushed
and died of injuries and
heat exhasution
• Oven turned off but still at
temperature of 100C with
employees trapped inside
for 17 minutes
Aggravating Factors
 System devised fell far below a reasonably
safe system of work. Death or really
serious harm was inevitable.
 Loss of two lives.
 No risk assessment which would have
revealed inadequacies.
 Lack fo appropriate training, planning,
monitoring and supervision at all levels.
Mitigating Factors
Early Guilty Pleas entered
Major efforts made after the
event to deal with health and
safety
No previous convictions for
Health and Safety offences
£350,000 fine and £145,000
costs to businesses involved
Total of £3,000 fines against
two senior individuals in
organisations
Corporate Manslaughter
Organisation guilty if the way its
activities are managed or
organised:
• Causes a persons death
• Amounts to a gross breach of
a relevant duty of care by the
organisation to the deceased
and the way its activities are
managed and organised by its
senior management is a
substantial element in that
breach
Three important components of offence
a) Relevant duty of care
b) Gross breach of duty
c) Senior Management
•
turn
Lets consider these three components in
Duty of Care
Any of the following duties owed
by an organisation under the
law of negligence:1. A duty owed to the employee or
others
2. A duty owed as occupier of
premises
3. A duty owed in connection with
the supply of goods/services or
carrying on of construction or
maintenance operations or the
carrying on of any other
activity on a commercial basis
Gross breach of care
Conduct alleged to
amount to a breach of a
relevant duty is gross if it
falls far below what can be
reasonably expected of the
organisation in the
circumstances.
Seriousness, risk, attitude
to Health and Safety and
any other relevant matters
are considered.
Senior Management
• Persons who play significant
roles in decision making in
the management or
organisation of the
organisation’s activities.
and
• Those who actually manage
and organise the whole or
substantial part of the
activities
Sanctions
• Fine
• Publcitity order - “name and
shame”
• A remedial order
• Failure to comply punishable by a
fine
Example
• Factory hire independent
contractors to renovate
business premesis.
• Minimal supervision popped in every few days
• Placed Roofer in dangerous
conditions
• Fell from roof and died from
injuries
“Business owner”
• In the event of a death the
police will become involved in
the initial process which will
mirror that of criminal
proceedings.
• Being a “factory/business
owner and not a criminal” will
not exempt those responsible
from the process and an
interview under Police and
Criminal Evidence Act 1984
will be conducted.
Interview
• In this example the factory
owner was told that they were
not under arrest
but
• They were taken into the
custody block where all
criminals arrested in the area
were booked in and held.
• They were interviewed by a
Detective Constable in a
process that lasted a total of
14 hours
Safeguard
This experience, regardless of
intent or criminality is the
process that a person can go
through even in the course of
their duties as a
factory/business owner and
putting the correct and
appropriate safeguards
(policies, procedures and
control measures) in place to
prevent such an ordeal will
prevent this and the harm, or
risk of harm, to employees.