For many years I have been banging the drum, in raising awareness of the risk to an organisation in failing to adopt a health and safety culture in respect of occupational drivers and the increased risk of prosecution.
I had formed the view that the risk of an organisation being prosecuted for Corporate Manslaughter was remote, a view that I still hold today. To date only one organisation has been prosecuted for such an offence, that prosecution has not yet been concluded so no wider conclusions can be drawn.
I have however witnessed an increase in prosecutions under the Health and Safety at Work Act 1974, which although at a lower level than a Corporate Manslaughter prosecution, can nevertheless result in considerable impact upon an organisation both in time and cost in defending the case, even if acquitted.
The Health and Safety Offences Act has resulted in the Magistrates Court being given greater sentencing powers to deal with Health and safety offences. This change was to unclog the Crown Court of these offences, in my view this will inevitable mean that prosecutors will be encouraged to launch health and safety prosecutions, in the knowledge that they are likely to be dealt with expediently through the Magistrates Court, rather than their laborious passage through the Crown Court.
Magistrates now have the power to impose fines of up to £20,000.00 in cases before them.
The Sentencing Guidelines Council has now issued a guideline in respect of the level of fines that should be imposed by the Court on a conviction for Corporate Manslaughter, or a breach of the Health and safety at Work 1974, commonly Sections 2 or 3.
As from the 15th February 2010 if an incident results in a death, the fine imposed for Corporate Manslaughter will be “Seldom less than £500,000.00 and may be measured in millions of pounds”
In respect of a breach of the Health and Safety at Work Act 1974 the fine will be “Seldom less than £100,000.00 and may be measured in hundreds of thousands of pounds or more”
There had been previous talk that the fine would be in the form of a `tariff` based upon the turnover of an organisation, this in my view would have been unworkable in cases where the organisation is not one where it has a `turnover` in the accepted sense for example public bodies, emergency services and health trusts. Although the `fine fits the crime` approach still finds favour in the Guidelines, the suggested minimum fine will make the Courts role simpler.
In addition the Court can impose Remedial Orders in respect of the organisations Health and Safety practices and in cases of Corporate Manslaughter, Publicity Orders requiring the organisation to publish information in respect of the conviction such as the details of the conviction and fine imposed. Both can result in collateral damage to an organisations reputation.
The Guidelines set out the factors which the Court should take into account when considering the seriousness of the offence, these include, how foreseeable was the risk of injury, how far short of the standard did the Defendant fall, how common was this breach within the organisation and finally how far up the organisation did the breach go.
There are also aggravating factors which the Court must take into consideration, these include, was there more than one death or an additional serious injury, failing to heed warnings or advice from officials or other persons, ignoring near misses and cost cutting at the expense of safety. Any one of these factors will see the fine increase dramatically.
On a brighter note there are mitigating factors and these will be where the organisation has a good health and safety record previously, where they had adopted a responsible attitude to health and safety, where they had commissioned expert advice and where affected employees had been consulted.
It has been very difficult to date to put a price on getting this wrong, these Guidelines now set out in stark relief that at the bottom end of the spectrum a simple health and safety breach could cost an organisation up to £20,000.00, one involving a death could be a minimum of £100,000.00 or £500,000.00 if convicted for Corporate Manslaughter, the sky is the limit on a maximum fine.
I would advise organisations using occupational drivers to heed the Guidelines advice and adopt a responsible attitude to health and safety and take expert advice, using will protect you from the spectre of prosecution and if the worst happens, a fully compliant risk assessment will provide you with mitigation towards the likely fine, the best insurance you can get.
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Author: David Faithful, consultant solicitor with Lyons Davidson