Health & Safety, Corporate Manslaughter, Food Safety and Hygiene Offences

Definitive Guideline – February 2016

April 2016 All rights reserved – Sybille CZERNIAKOWSKI – [email protected] 1

Download the guideline here: http://www.sentencingcouncil.org.uk/publications/item/health-and-safety-offences-corporate-

manslaughter-and-food-safety-and-hygiene-offences-definitive-guideline/

• Offences committed after 6 April 2010

• Offenders aged 18 and older (ind.)

• Sentenced on or after 1 February 2016

• 9-step process

Coroners and Justice Act 2009, section 125(1)

Every court –

a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and

b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelineswhich are relevant to the exercise of the function

unless the court is satisfied that it would be contrary to the interests of justice to do so.


Appropriate sentence

Credit for a guilty plea is taken in consideration

Category range

Reflect degrees of seriousness

Starting point Final adjustment

Offence range

Appropriate for each type of sentence

Category

• Determination of the category of the offence which depends on the culpability and the harm; or the seriousness of the offence.

Range

• Determination of the starting point and the category range . Many factors could increase the seriousness (i.e. recent conviction) or induce mitigation.

Review

• Review of the proposed fine face to the turnover, the impact , the factors which indicate a reduction etc.

• Possibility of given a reduction for guilty pleas

• Consideration by the court of the compensation and ancillary orders

Sentence

• Total sentence principle (just and proportionate)

• Give reasons for, and explain the effect of, the sentence

• Consideration (individuals) the time spent on bail


Food Safety and Food hygiene

FSFH

CorporateManslaughter

CM

Health and Safety

HS

Theme Legislation

FSFH

Breach (Organisations and Individuals)• England

• Food Safety and Hygiene (England) Regulations 2013• Wales

• Food Hygiene (Wales) Regulations 2006• The General Food Regulations

CM • Corporate Manslaughter and Corporate Homicide Act 2007

HSBreach and breach of duty (Organisations and Individuals), Secondary Liability (Individuals)• Health and Safety at Work Act 1974


Health and Safety

Food Safety and Food Hygiene


Determining the offence category

using the culpabilityand harm factors

Starting point & categoryrange (based on the size of

the organisation, factualevents for adjustement)

Check whether the proposed fine based on

turnover is proportionate to the overall means of the

offender (financialinformation)

Consider otherfactors that may

warrant adjustmentof the proposed fine

Consider any factors whichindicate a reduction, such

as assistance to the prosecution

Reduction for guilty pleasCompensation and

ancillary orders

Totallly principle

Reasons


Culpability Factor

Very High Deliberate breach of or flagrant disregard for the law

High

Offender fell far short of the appropriate standard Serious and/or systemic failure within the organisation

to address risks

Medium

Offender fell short of the appropriate standard in a manner that falls between descriptions in high and low culpability categories

Systems were in place but these were not sufficiently adhered to or implemented

Low

Offender did not fall far short of the appropriate standard

Minor failure which occurred as an isolated incident

The harm is determined by a

table based on the risk of harm:

• HS: seriousness + likelihood,

• FSFH: likelihood.



HS

Moreover, in HS offences, we need to consider the potential number of person and whether it is a significant cause.

FSFH



Very large

organisation

Where an offending

organisation’s turnover

or equivalent very

greatly exceeds the

threshold for large

organisations, it may be

necessary to move

outside the suggested

range to achieve a

proportionate sentence.

From £50 to £10,000,000

Can be unlimited (tried on indictment/summarily)


Very large

organisation

Where an offending

organisation’s turnover

or equivalent very

greatly exceeds the

threshold for large

organisations, it may be

necessary to move

outside the suggested

range to achieve a

proportionate sentence.

From £100 to £3,000,000

Can be unlimited (tried on indictment/summarily)



HS

• Remediation

• Forfeiture

• Compensation

FSFH

• Hygiene Prohibition orders

• Compensation


Very close to the 9-step Health and Safety Organisations process


CM

Determining the

seriousness of offence

Starting point & categoryrange

Check whether the proposed fine based on

turnover is proportionateto the overall means of

the offender

Consider other factorsthat may warrant adjustment of the

proposed fine

Consider any factorswhich indicate a

reduction, such as assistance to the

prosecution

Reduction for guiltypleas

Compensation and ancillary orders

Totallly principle

Reasons


CM

• Step 1: Harm and culpability are very serious by definition. There is only 2 Offence Category A (high) and B (low) on 4 questions:

• How foreseeable was serious injury?

• How far short of the appropriate standard did the offender fail?

• How common is this kind of breach in this organisation?

• Was there more than 1 death, or a high risk of further deaths, or serious personal injury in addition to death?


CM


• Publicity Orders

• Remediation

• Compensation

From £180,000 to £20,000,000

Can be unlimited

CM

Health and Safety

Food Safety and Food Hygiene


Determining the

offence category(Culpability & Harm)

Starting point & category range

(financial information)

Review any financialelement of the

sentence

Consider any factorswhich indicate a

reduction, such as assistance to the

prosecution

Reduction for guiltypleas

Compensation and ancillary orders

Totallly principle

Reasons

Consideration for

time spent on bail


Culpability Factor

Very High Where the offender intentionally breached, or flagrantly disregarded, the law

High Actual foresight of, or wilful blindness to, risk of offending but risk nevertheless taken

Medium Offence committed through act or omission which a person exercising reasonable care

would not commit

Low Offence committed with little fault

The harm is determinate by the same mechanism than for the organisations:

• HS: table (seriousness + likelihood) + public/worker exposed + significant cause,

• FSFH: table likelihood.


HS


From conditional discharge to 2 years’ custody

When tried on indictment: unlimited fine and/or 2 year’s custody

When tried summarily: unlimited fine and/or 6 months’ custody

FSFH


From conditional discharge 18 months’

custody

When tried summarily oron indictment:

unlimited fine and/or 2 year’s custody

(indictment) and/or 6 months’ custody (Wales

summarily)

HS

• Disqualification of director

• Remediation

• Forfeiture

• Compensation

FSFH

• Hygiene Prohibition order

• Disqualification of director

• Compensation


Based at minimum on likelihood

Determination of a category range

(Fine/Custody must be within this category range)

Modulation by negative and positive factors (management,

previous convictions …)

Unlimited fines can occur

Already effective

• Manslaughter Corporate

• Health and Safety

• Food Safety and Food Hygiene

Organisations & Individuals


Law

Health & Safety, Corporate Manslaughter, Food Safety and Hygiene Offences