The Sentencing Council is consulting on draft guidelines for sentencing health and safety, corporate manslaughter and food safety offences. The Council is particularly seeking views on: the scope of each guideline; the overall approach proposed to sentencing organisations and individuals; factors that make offences more or less serious; principles of sentencing; and the sentences that should be passed for health and safety, corporate manslaughter and food safety offences.
In order to develop the guidelines, the Sentencing Council has undertaken a statistical analysis of current sentencing practice and has also carried out a review of sentencing in recent cases and conducted research with a small pool of Crown Court judges, district judges and magistrates. In its work on this, the Sentencing Council has had regard to the purposes of sentencing, which are said in section 142 of the Criminal Justice Act 2003 to be: the punishment of offenders; the reduction of crime; the reform and rehabilitation of offenders; the protection of the public; and the making of reparation by offenders to persons affected by their offences. The Sentencing Council has also had regard to the statutory duties in the Coroners and Justice Act 2009, which set out requirements for sentencing guidelines.
In the draft guidelines, the Sentencing Council notes that the sentence for any offence committed by an organisation, and also in many cases involving individuals, the sentence will be a fine. The Sentencing Council takes the view that the sentence must remove any economic gain derived from the offence. In relation to organisations, the Sentencing Council has adopted the principle that the fine should be sufficiently substantial to have a real economic impact which will bring home to management and shareholders the need to comply with legislation and achieve a safe environment for workers and members of the public. The Sentencing Council has reviewed sentencing practice in each of the areas covered in the draft guidelines. The Council’s aim is to produce a scheme of starting points and ranges that will support magistrates, district judges and judges that fulfil the aims of sentencing.
The guideline for organisations and individuals will apply to:
There is a wide range of seriousness encompassed by the offences within the guideline. The first step in the guideline aims to assist the sentencer in identifying the overall seriousness by reference to the culpability of the offender in committing the offence by reference to the culpability of the offender and the harm that resulted. In the case of an individual, the Sentencing Council considers that culpability depends on their attitude towards the standards that they have failed to meet. This type of analysis is more difficult for an organisation where there are potentially many individuals involved in an offence. Therefore the Sentencing Council considers that an appropriate method to assess the culpability of an organisation is to consider how far short of the relevant standards the offender fell. The Sentencing Council is therefore consulting on guidelines with separate culpability schemes for individuals and organisations. Both schemes would treat an intentional breach or a flagrant disregard for standards imposed on them to be the top level of culpability for both organisations and individuals.
The second step in assessing seriousness is consideration of the harm created by the offence. The Sentencing Council is consulting on a two-stage approach to assessing harm. First, the court must consider the risk of harm created by the offence, including assessing the seriousness of the harm risked by the offender’s breach, and the likelihood of that harm arising. The second stage is to consider whether the offence exposed a significant number of people to the risk of harm and whether the offence was a significant cause of actual harm.
The guideline also considers starting points and ranges for health and safety offences. The Sentencing Council is consulting on starting points and ranges for micro, small, medium, large and very large organisations, and individuals. After that, sentencers are expected to review the financial element of the sentence and check whether it is proportionate, and consider other factors that may warrant adjustment of the sentence.
The offence of corporate manslaughter was introduced in the Corporate Manslaughter and Corporate Homicide Act 2007 and the Sentencing Guidelines Council (the predecessor to the Sentencing Council) produced a guideline that came into force in February 2010 to support courts in sentencing for the new offence. The Sentencing Council has decided to review the guideline for corporate manslaughter principally because of the close relationship the offence has with health and safety offences.
The Council’s guideline starts by considering culpability and harm, in order to assess the seriousness of the offence. It follows the approach previously taken by the Sentencing Guidelines Council of guiding the sentence towards key questions relating to harm and culpability. The questions asked by the Sentencing Council are:
The guideline then sets out starting points and ranges for four sizes of organisation linked to the turnover of the offending organisation.
The court is then required to consider aggravating and mitigating factors that may warrant movement within the range. The Sentencing Council’s intention is to highlight factors which are likely to be relatively common, in order to ensure that they are considered consistently by different courts.
As with health and safety offences, the guideline expects sentencers to review the financial element of the sentence and check whether it is proportionate, and consider other factors that may warrant adjustment of the sentence.
The Sentencing Council has decided to focus on the most commonly prosecuted food safety and hygiene offences, and those concerned with risks to health. It is consulting on a guideline that covers, for England Regulation 19(1) of the Food Safety and Hygiene (England) Regulations 2013, and for Wales Regulation 17(1) of the Food Hygiene (Wales) Regulations 2006 and Regulation 4 of the General Food Regulations 2004.
As with its approach to assessing culpability for health and safety offences, the Sentencing Council regards the culpability of individuals as depending on their attitude towards the standards that they have failed to meet. It regards the appropriate method to assess the culpability of an organisation as being to consider how far short of the relevant standards the offender fell. It is therefore consulting on guidelines with separate culpability schemes for individuals and organisations.
The guideline sets out starting points and ranges for sentences for individuals and organisations. In respect of fines, for the most part, the Council has adopted the fine bands used in the magistrates’ court sentencing guidelines, since these will be familiar to magistrates. In order to reflect the gravity of the more serious offence categories, the Sentencing Council has defined a higher fine band, Band F, which has a starting point of 600 per cent of an offender’s weekly income and a range of 500 per cent to 700 per cent.
The court is then required to consider aggravating and mitigating factors that may warrant movement within the range. The Sentencing Council’s intention is to highlight factors which are likely to be relatively common, in order to ensure that they are considered consistently by different courts.
The Sentencing Council considers that totality is a particularly pertinent consideration in food safety and hygiene offences. Its consultation document observes that offenders are often charged with multiple counts. In view of the preponderance of totality issues in these cases, the Sentencing Council proposes to highlight guidance from its guideline on Totality and Offences Taken into Consideration, in order to prompt courts to consider the totality principle.
In its consultation, the Sentencing Council is seeking views on questions specific to the proposed guidelines relating to health and safety offences, corporate manslaughter, and food safety and hygiene offences. It also seeks views on the following, relating to aims, overarching issues, and victims, equality and diversity:
The Sentencing Council’s consultation will last until 18 February 2015. The Sentencing Council is also intending to organise consultation events and to carry out further research. When the consultation exercise is over, the Sentencing Council expects to publish final guidelines that will be used by all adult courts.