March 2021 Monthly Blog – Sentencing guidelines 5 years on
Back then
Way back in 2016, one of Arinite’s directors Bryan Richards (now sadly departed), anticipated the impact of the then forthcoming Sentencing Council Guidelines in his blog: Large Increase in Health and Safety Penalties – who’s going to pay?. I too found myself trying to strike a delicate balance between making directors aware of the looming hike in health & safety fines – without being seen to be scaremongering or building up my part.
For the first time, the Sentencing Council Guidelines gave direction to courts on how to punish health and safety offences. The 40+ page document provided a step-by-step guide for sentencing companies and individuals for health & safety and food offences. This includes taking into account the turnover of the organisation, the level of culpability and the likelihood that the failing could lead to harm and how bad the harm could be.
What has happened since 2016?
My October 2018 blog listed no fewer than fourteen £1m+ fines and three jail sentences during the 12month period following Bryan’s post. I observed how it used to be rare to see fines for a workplace fatality in excess of £1m but predicted that it would soon become rare to see fines of less than £1m where there had been a workplace fatality.
Now, in the latest year for which statistics are available, the March 2020 report on enforcement statistics by the HSE and, in Scotland, the Crown Office and Procurator Fiscal Service records:
“The average level of fine has [also] shown an increase since the sentencing guidelines came into effect, rising from £27,000 per conviction in 2014/15 to £110,000 per conviction in 2019/20”.
So far so predictable. But wait, what’s this? The HSE’s report also shows that the total amount from fines has, if anything peaked and started to decline:
A similar picture emerges of the number of prosecutions:
Enforcement notices? Same picture:
So what's going on?
The HSE doesn’t offer any narrative on why the number of actions has started to fall. It’s too soon to blame the arrival of COVID-19, and unlikely to be just a lack of diligence on the part of the HSE. So maybe the explanation has to be that firms are taking the increased penalties seriously and upping their health & safety game?
You could therefore conclude that the sentencing guidelines are achieving the desired objective and focusing boardroom minds on health & safety!
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