Contributed by Harry Vann of Crown Office Chambers
With the start of the Grenfell Tower Inquiry in May 2018, health and safety issues have never been more in the public eye or consciousness. That trend has been reinforced by the continuing impact of the Sentencing Council Definitive Guideline over the last year in a number of high profile cases.
The impact of the Sentencing Council’s Definitive Guideline for Health and Safety Offences, Corporate Manslaughter and Food Safety Hygiene Offences continues to be felt by duty holders of all sizes, but especially those in the ‘medium’, ‘large’ and ‘very large’ brackets who find themselves routinely fined in £100,000s for cases which they might have hoped, relatively recently, to be disposed of in the Magistrates’ Court. Figures released in November 2017 show further increases from those released in mid-2017: the total amount companies were fined in HSE and, in Scotland, COPFS, prosecutions in the 12 months to November 2017 rose from £38.8 million in 2015-16 to £69.9 million in 2016-17 with the average corporate fine for health and safety offences reaching £126,000.
In 2016-17, a significant number of fines in seven figures demonstrated that such figures are far from exceptional, and 2018 has proved no different with fines of millions of pounds becoming more commonplace. By way of example, this year, DHL were fined £2 million in relation to an accident when an employee was fatally crushed between a reversing vehicle and a loading bay; Bupa Homes were fined £3 million in respect of a fatal case of legionnaires disease in a care home; Southern Health NHS Trust was fined £2 million after two deaths of a 16 and a 45 year old, demonstrating that public bodies are not immune to such sums; and Tesco was fined £1.6 million for an accident in respect of a member of the public who was crushed by a reversing vehicle, sustaining life changing injuries.
It is noteworthy that, thus far, the much higher sentences imposed as a result of the Guideline have had no impact on the number of deaths in the workplace. Figures published in July 2018 state that the number of workplace deaths in 2017-18 was 144, marginally above the average for the last five years of 141.
The approach to ‘very large’ companies, in particular in fatal cases, received the attention of the Court of Appeal in HSE v Whirlpool UK Appliances Limited  EWCA Crim 2186. In that case, the Defendant successfully appealed its sentence in a case involving low culpability and harm category 3, but in which a fatality had resulted. The Court held that a company at the top of the ‘large’ range could expect death to aggravate the sentence to the top of the next bracket, there £250,000. However, the Defendant’s turnover of some £700 million warranted a further increase in starting point to a figure of double that, £500,000, before mitigation and guilty plea were taken into account. Whilst the Court reiterated the need for a case by case basis and the lack of a straitjacketed approach to the Guideline, the potential impact for companies of similar means in cases involving higher culpability and/or higher harm categories is plainly very significant indeed.
Prosecutions of Individuals
An increase in the number of individuals prosecuted has been mirrored by an increase in the percentage of custodial sentences which have resulted from health & safety prosecutions. This again flows from the application of the Definitive Guideline, in which a six-month custodial sentence marks the top of the range for cases of only medium culpability and harm category 2. In the year to November 2017, there was a 50% increase in immediate custodial sentences from 4% to 6% of all sentences since the previous year; the proportion of suspended sentences as a percentage of sentences overall has doubled, from 6% to 12%.
Further with regard to individuals, publication of the long-awaited Definitive Guideline for individual manslaughter, including gross negligence manslaughter, has been brought forward to 31st July 2018 to come into effect by 1st November 2018, significantly earlier than previously thought. By October 2017, 37 consultees had provided responses, including 4 from the judiciary (3 individual and 1 organisation), 8 from defence lawyers (2 individuals, 6 organisations) and 6 from legal professional organisations. Whilst the consultation was due to conclude in October 2017, it was extended to allow certain bodies, including the House of Commons Justice Committee to have input, which it provided in December 2017. The Justice Committee’s particular views on gross negligence manslaughter were as follows, providing substantial support for a number of practitioner consultees’ positions on the draft Guideline: the Committee was concerned about the impact on correctional resources if custodial sentences for gross negligence manslaughter were increased (currently averaging 5 years); high culpability factors should be reconsidered as, within a workplace context, they were, as drafted, likely to apply to too high a proportion of workplace scenarios, resulting in inappropriately long sentences in a disproportionately high number of cases, especially those involving low level employees; and “blame wrongly placed on others” should be removed as an aggravating factor, since highlighting the role played by others is a ubiquitous feature of defences to such charges.
As the anniversary of the Grenfell Tower fire came and went and Phase 1 of the inquiry began, the public’s interest was further piqued by tower block fires in Dunmurry, Stratford, and Mile End. Moreover, the refusal of the abuse of process applications in the Hillsborough manslaughter prosecutions further suggests that the world of health and safety has another fascinating year ahead, never far from the spotlight.