New Sentencing Guidelines Now In Force – Select Your Legal Counsel Wisely

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New sentencing guidelines came into force on 1st February 2016 and apply to any health and safety offences, corporate manslaughter and food safety offences prosecuted in English and Welsh courts.

Published in November 2015, the definitive sentencing guidelines were hailed as constituting the biggest shake-up since the introduction of the Health and Safety at Work, etc. Act in 1974. They introduce a structured nine-step approach that the Court should follow, so as to calculate sentences.  This involves plugging culpability and harm factors into a series of tables to reach recommended starting point fines, as well as ranges of fines above and below the starting points.

Mitigating factors, such as an early guilty plea and a previously spotless health and the record will be taken into account by the courts; however, so will any aggravating factors.

Fines Totalling Hundreds of Thousands of Pounds

The overall effect of the new sentencing guidelines is to bring corporate fines for health and safety breaches more into line with those for other economic crimes such as breaches of competition law.

Large companies now risk fines in the hundreds of thousands, and sometimes millions of pounds.  Due diligence and risk assessment will require even more time, investment and specialist knowledge to lessen the risk of health and safety breaches occurring.

A large organisation being sentenced for high culpability and harm (a workplace fatality for example) can expect a range of £1.5m to £6m with a starting point of £2.4m (to be adjusted on the facts of the case). If the culpability is very high, the range is £2.6m to £10m with an entry point of £4m. Nor is £10m a ceiling. Large organisations with a turnover several times more than £50m potentially face fines that are considerably higher.

The highest fine levied in February, the month the guidelines came into force was for £3m in relation to an uncontrolled release of gas from an offshore platform.  Although there were no injuries, around 66 people were put at risk

Custodial Sentences

Another major concern for company directors is that the new guidelines also lower the custody threshold for health and safety cases.  Some fear that this could lead to more individuals being imprisoned for offences that would not previously have been regarded as sufficiently serious to merit a custodial sentence.

Choosing The Right Legal Representation

Now that the stakes are so much higher and the potential impact on both shareholder dividends and directors’ liberty have increased significantly, it is imperative to select experienced, specialist legal counsel when faced with prosecution for health & safety or corporate manslaughter offences.

Experienced health and safety solicitors have observed that prosecutors are now pushing for cases to be moved up into the higher harm and culpability categories, meaning the starting point for the fine will be higher. To defend corporations and individuals under such circumstances requires legal representation that is sharp, knowledgeable and has relevant industry experience.

Insurance policies will often provide cover for legal fees if litigation is commenced against a company or a director.  However, the insurer will sometimes strongly suggest that policyholder instruct one of the law firms recommended by them, due to the highly competitive rate they have negotiated with particular legal practices.

Be In Control

Both company directors and in-house counsel need to be aware how serious fines can be under the new sentencing guidelines.  Rather than look at the cost per hour of a firm in such circumstances, corporations need to evaluate value for money and assess the risks involved in engaging legal advice which may not have the level of expertise and experience to robustly defend a prosecution that could spell financial ruin for a company and incarceration of its directors.

Specialist In Our Field

Fisher Scoggins Waters have the experience and expert knowledge to provide a tailored service to suit the specific needs of clients and provide the correct response to Health and Safety related incidents.  

We offer a comprehensive Expert emergency response service, Internal investigation advice, support through Health and Safety Executive (HSE) and Police investigations and prosecutions, and representation at Coroners' Inquests.  We build the team you require, specific to your needs and the needs of your case to ensure every hour spent is of true value and takes you forwards to resolving the issues.

Take Control

Let us guide you and provide the support and expertise required in dealing with these difficult and stressful events, please contact us by telephone on 0207 993 6960 or email Charlotte Waters.

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