Legal briefing: a guided tour of sentencing

To readers of EHN and EHN Extra, the sentencing guidelines that are currently in force for environmental and health and safety breaches are clear. What has been less clear to date is whether the Sentencing Council has achieved the desired effect from those guidelines – and if so, do we need similar guidelines for other types of breaches?

The guidelines were introduced at a time when it was felt that the levels of fines for environmental (and health and safety) offences were inconsistent and not high enough to act as a deterrent.

Recent analysis seems to show that the environmental sentencing guidelines had the anticipated effect of imposing significantly larger penalties and fines for serious corporate offenders and marginally larger penalties for individual defendants.

It is a similar story with the health and safety guidelines: million-pound fines for simple breaches are routinely handed out to the large organisations, as are terms of imprisonment (often suspended sentences) for ‘rogue’ individuals.

Judges seem to like these guidelines. They offer a security blanket in the event of being challenged for imposing an unreasonable sentence. But I have discussed these guidelines at length with clients and members of the public, and opinions are still somewhat split. Some feel the guidelines ensure those that fall foul of the law are held accountable, but others still feel that the defendant will always be at a disadvantage.

The fact that huge fines and probable imprisonment are now commonplace means that there is surely more of an incentive to defend prosecutions of this nature through to trial and to try to avoid conviction, rather than accepting criminal liability and banking on a sentence reduction for a guilty plea.

Looking ahead, I have often wondered where sentencing guidelines will crop up next. In light of public fire incidents such as Grenfell and Lakanal House, there was a public consultation for the introduction of fire safety sentencing guidelines. Fire safety fines are currently significantly lower – tens of thousands rather than hundreds of thousands of pounds, as in the case of JD Sports being fined £60,000 for blocked exits and storing combustible materials – but is that fair?

I can foresee one problem. If fire safety was treated in the same way as health and safety, then most fire safety cases would be placed at the highest culpability/high seriousness of harm bracket. Prosecutions should only be brought under fire safety legislation if the breach has put relevant persons at risk of death or serious harm, and that will always be a high culpability/seriousness of harm offence.
From 1 October 2019, the Sentencing Council provided general sentencing guidelines for offences not so far covered by the existing guidelines, which it called ‘Overarching Principles’. There may be continued calls for offence-specific guidelines – or simple encouragement from prosecutors for judges to sentence ‘in the spirit’ of the existing health and safety guidelines.

Either way, companies and senior individuals should be aware of the trend towards high fines for the most serious safety breaches. To avoid facing judicial wrath they need to be proactive and robust in the management of their operations.

Kizzy Augustin is a partner at Russell-Cooke Solicitors.

This is adapted from an article that appeared in the November 2019 issue of EHN (login required).