Written by Harry Vann and Katie Sage of Crown Office Chambers.
It has been another extremely busy year in the high-profile world of health and safety. As 2018 closed with the end of the Phase 1 hearings of the Grenfell Inquiry, 2019 began with the long-awaited Hillsborough trial. Whilst David Duckenfield now faces a (further) re-trial, Graham Mackrell became the first person convicted of an offence in connection with the tragedy, albeit for a non-imprisonable offence. Elsewhere, Chevron was finally sentenced for the 2011 Pembroke Oil Refinery Explosion.
Meanwhile, the increase in the FFI hourly rate and the institution of an independent disputes panel seems likely to increase significantly the appetite of duty holders to challenge unwarranted invoices.
The Sentencing Council’s Definitive Guideline for Health and Safety Offences, Corporate Manslaughter and Food Safety Hygiene Offences continues to lead to an increase in fines for duty holders of all sizes. Figures published in October 2018 show that conviction rate for cases prosecuted by the HSE and, in Scotland, the COPFS in 2017/2018 was 95% with the total number of fines reaching over £72.5 million. The average fine was £147,292, up some £20,000 on last year’s figures.
Against this backdrop of another year of increase in the average fine, the Sentencing Council published its Impact Assessment of the Guideline. It will be of no surprise to those practising in this area that the Council found fines had increased for 'Large' organisations, as expected, but also for both 'Small' organisations and individuals. The Council had not expected this. The figures in the report show just how stark the increase in fines has been for 'Large' and 'Very Large' organisations with the mean fine for the 16 months pre-guideline at under £50,000 and the mean fine for the 16 months post-guideline at over £350,000. The Council has committed to investigating the operation of the Guideline again in due course with a view to considering whether any revision is necessary.
Some fines stand out for mention. The Priory, well into the 'Large' organisation bracket with a turnover of £133m, was recently fined a relatively modest (on the Guideline) £300,000 demonstrating the impact of the absence of causation in that case. Whilst Chevron’s £5 million inevitably grabbed headlines, it was arguably a low figure for an undoubtedly 'Very Large' organisation where four deaths had been caused, especially by reference to the same figure imposed on Merlin Amusements (a much smaller company) in 2016 in a non-fatal case. Further cases will help establish whether there is to a plateauing of fines at the most serious end of offending.
It is worthy of note that to date the increase in fines does not appear to be matched by a fall in fatal accidents. 147 fatal accidents were reported in the year to July 2019 which is the same fatal accident rate per 100,000 workers (0.45) as the average for the last five years.
We continue to see that the increase in fines for Health and Safety Offences appears to be resulting in a loss of appetite for prosecutions for Corporate Manslaughter under the 2007 Act: there have been only two convictions under the Act in the last two years, compared to 24 convictions in the first decade since it came into force.
Prosecution of individuals
Individuals continue to be prosecuted in higher numbers, although the 50% rise on immediate custodial sentences of last year was not duplicated, with immediate custodial sentences as a proportion of all sentences now at 7%, up from 6%. The proportion of suspended sentences has fallen from 12% to 9%. However, the continuing appetite for the prosecutions of individuals is perhaps reflected in the announcement that Mr Duckenfield will face a third trial in respect of the Hillsborough Stadium disaster, having returned a second hung jury in April 2019, and the prosecution’s determination to pursue the prosecution of Mr Mackrell, former secretary of Sheffield Wednesday Football Club, even after the only imprisonable offence against him was dismissed at half-time.
This year also saw the Sentencing Council publish its Definitive Guideline on Manslaughter which took effect on 1 November 2018. It is too soon to assess the impact of the new Guideline but, with a starting point of two years’ custody for an offence of gross negligent manslaughter with lower culpability, significant custodial sentences seem inevitable.
Prosecutions arising out of food safety cases also appear to be on the rise following a number of high-profile cases arising out of allergy-related deaths. The Government has responded by committing to introduce legislation for labelling of foods prepacked for direct sale by 2021, demonstrating the importance of these cases for public policy. We anticipate that prosecutions in this area will continue.
The year ahead
It is clear that the year 2019/20 will be busy again for those practising in health and safety. Phase 2 of the Grenfell Inquiry is anticipated for the end of this year, and the Didcot Power Station and Bosley Mill explosion investigations are ongoing. There is plainly food for thought as to whether the increase in sentencing is improving safety, but one thing is clear: HSE’s appetite for prosecutions is undimmed and duty holders have more reason than ever to fight their corner.