Contributed by Guy Bastable, Richard Reichman and Tom McNeill of BCL Solicitors LLP
The Sentencing Council’s guideline “Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences” represented a step change in sentencing when it was introduced over two years ago. Areas of uncertainty remain due to the inherent flexibility in the guideline, for example regarding the approach to sentencing a ‘Very Large Organisation’ (VLO). The guideline defines a VLO as an organisation with turnover which “very greatly exceeds the threshold for large organisations” (i.e. very greatly exceeds “£50 million and over”). The Courts have continued to avoid a more precise definition of a VLO in recent cases although some further clarity regarding the approach to sentencing has been provided.
In R v Tata Steel UK Limited, there was no doubt that the corporate defendant was a VLO with an annual turnover of around £4 billion. The approach of the sentencing judge was to move up a ‘harm category’ (from category 2 to category 1) to achieve a proportionate sentence, doubling the starting point from £1.1 million to £2.4 million. This approach was upheld by the Court of Appeal in June 2017.
Towards the end of 2017, the Court of Appeal considered another VLO in R v Whirlpool UK Appliances Ltd. It was “clear to [the Court] that it must be [a VLO]” with a turnover of around £700 million. The Court noted that the guideline “suggests that a very large organisation is likely to have a turnover of multiples of £50 million but we would not wish to create an artificial boundary”. At first instance, the relevant starting point for a ‘large organisation’ had been substantially increased to £1.2 million due to the company’s high turnover, with an ultimate fine of £700,000 imposed. The Court of Appeal reduced the starting point by almost 60% to £500,000; the fact of a death justified a fine at the top of the next harm category range up and then, based on turnover, a further step up into the next harm category range was appropriate. Ultimately, the Court of Appeal quashed the fine of £700,000 and substituted one of £300,000. The Court noted the “inherent flexibility” of the guideline “necessary to meet the broad range of circumstances that fall to be considered” and that “application in an arithmetic way…should be resisted”.
Further sentencing developments are anticipated in the form of a new manslaughter sentencing guideline. The Sentencing Council’s ‘Manslaughter Guideline Consultation’ was launched in 2017 following the (then) Lord Chancellor’s request for a guideline for ‘one punch’ manslaughter offences, after public concern over sentencing in high-profile cases. The Sentencing Council ultimately decided to look at manslaughter offences in general. The Sentencing Council stated that developing a guideline for sentencing gross negligence manslaughter offences is particularly challenging as “the offence occurs relatively rarely but in a very wide range of circumstances”. They concluded that “it would be appropriate for sentences to increase in some situations”. In December 2017, the House of Commons Justice Committee produced a report on the Sentencing Council’s draft guidelines. In relation to gross negligence manslaughter, the Committee concluded that there is “a risk of the high culpability factors proposed…leading to inappropriately long custodial sentences” and that an aggravating factor of blaming others required further clarification. The guideline is expected to be published in September 2018.
Following the decision in SFO v ENRC, litigation privilege is another area of current uncertainty. In the subsequent case of R v Paul Jukes, the Court of Appeal considered a claim for litigation privilege in the context of a fatal accident investigation. Mr Jukes was the transport and operations manager at a site owned by a waste and recycling company. As part of an investigation by his employer’s solicitors, he signed a statement claiming responsibility for health and safety. When interviewed by the police and HSE 16 months later, he denied having such responsibility. At first instance, the original statement was relied upon by the prosecution and Mr Jukes was convicted under Section 7 of the Health and Safety at Work Etc. Act 1974. On appeal against conviction, the Court of Appeal held that litigation privilege did not apply to the statement. At the relevant time, “no decision to prosecute had been taken by the Health and Safety Executive and matters were still at the investigatory stage. An investigation is not adversarial litigation.” There was “no evidence [of] enough knowledge as to what the investigation would unearth or had unearthed…that it could be said that they appreciated that it was realistic to expect the [HSE] to be satisfied that it had enough material to stand a good chance of securing convictions,” i.e. criminal proceedings were not reasonably in contemplation at the relevant time. Subject to the outcome of the appeal in ENRC (heard in July 2018), it appears that claims for litigation privilege will continue to be challenged more frequently and tested on a fact-specific basis with criminal litigation being in prospect at a later stage than was widely understood previously.
Earlier this year, some welcome clarity was provided by the Supreme Court regarding appeals against enforcement notices in HM Inspector of Health and Safety v Chevron North Sea Limited. The Court concluded that “the tribunal is entitled to take into account all the available evidence relevant to the state of affairs at the time of the service of the prohibition notice, including information coming to light after it was served”. The ability to introduce new evidence is likely to make appeals more viable and therefore more common. This is a welcome development for businesses as prohibition notices can have a severe effect by disrupting operations as well as causing reputational damage (due to the publication of the notice on the HSE’s online register).
Another positive change for companies facing enforcement action is the new process for disputes relating to the HSE’s Fee for Intervention. Following a public consultation, the HSE revised its dispute consideration process. All disputes are now considered by a panel which is independent from the HSE. The new process also requires the HSE to inform the dutyholder of all relevant information which contributed to the inspector’s decision, as well as the reasons why a contravention was considered to be a material breach.