Legislative update: Spring 2016
Angus Evers from King & Wood Mallesons explains new sentencing guidelines for health and safety offences and two recent consultations set to affect the sector.
Tougher sentences for health and safety offences
Since 1 February 2016, when sentencing offenders for health and safety offences and corporate manslaughter, the courts have been required to apply a new definitive guideline issued by the Sentencing Council in November 2015. The guideline was the subject of a consultation that ran from November 2014 to February 2015. It applies to all organisations and individuals (such as company directors and sole traders) aged 18 and over who are sentenced on or after 1 February 2016, regardless of the date on which the offence actually occurred. The offences covered include breaches of the Health and Safety at Work etc Act 1974 and corporate manslaughter (or corporate homicide in Scotland) under the Corporate Manslaughter and Corporate Homicide Act 2007.
Given the number of health and safety incidents in the waste management industry, the new guideline may prove to be a wake-up call for some. Judging from the courts’ approach to applying similar new sentencing guidelines for environmental offences, large operators convicted of serious health and safety offences can expect to receive fines of hundreds of thousands of pounds. The guideline emphasises that fines must be sufficiently substantial to have a real economic impact that will bring home to management and shareholders the need to achieve a safe environment for workers and members of the public affected by a business’s activities.
The guideline contains separate guidelines for sentencing organisations for health and safety offences, sentencing individuals for health and safety offences, and sentencing organisations for corporate manslaughter (individuals cannot commit the offence of corporate manslaughter). In each case, the first step is to establish the seriousness of the offence, based on the offender’s culpability and the degree of harm suffered (or the risk of harm created). That will enable the court to select a starting point, which in the case of an organisation is determined by its annual turnover. Starting points range from a £200 fine for a low culpability, low harm health and safety offence by a business with a turnover of less than £2 million to a £7.5 million fine for a high culpability corporate manslaughter offence by a business with a turnover exceeding £50 million. The final stages of the process will involve considering any aggravating or mitigating factors.
Reductions in sentence for guilty pleas?
The Sentencing Council also consulted (until 5 May 2016) on a new definitive guideline for a reduction in sentence for a guilty plea. If introduced, the new definitive guideline would apply to all criminal offences, including environmental, health and safety offences.
A guilty plea normally reduces the impact of a crime upon its victims, saves victims and witnesses from having to testify in court, and is in the public interest in that it saves public time and money on investigations and trials. As such, a guilty plea can potentially reduce any sentence imposed. The consultation proposes a reduction of one-third for a guilty plea at the first stage of proceedings, reducing to a maximum of one-fifth for a guilty plea at a later stage in the proceedings and a maximum of one-tenth for a guilty plea on the first day of trial.
Consultation on fire prevention plans for waste sites
The Environment Agency (EA) has recently held a consultation (which closed on 4 March 2016) on guidance on fire prevention plans for waste sites. The guidance was originally issued in March 2015, but had not been subject to public consultation before being issued. The consultation sought views on the revision of the fire prevention plan guidance, which is aimed at reducing fires on waste sites. The consultation focused on technical issues, such as separation distances between piles of waste and limits on the storage duration of combustible waste, but gives rise to wider issues (which were not the subject of the consultation) on the duplication of regulatory controls between the EA and fire and rescue authorities.