health & safety, corporate manslaughter, food safety and hygiene offences
TRANSCRIPT
Definitive Guideline – February 2016
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Download the guideline here: http://www.sentencingcouncil.org.uk/publications/item/health-and-safety-offences-corporate-
manslaughter-and-food-safety-and-hygiene-offences-definitive-guideline/
• Offences committed after 6 April 2010
• Offenders aged 18 and older (ind.)
• Sentenced on or after 1 February 2016
• 9-step process
Coroners and Justice Act 2009, section 125(1)
Every court –
a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and
b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelineswhich are relevant to the exercise of the function
unless the court is satisfied that it would be contrary to the interests of justice to do so.
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Appropriate sentence
Credit for a guilty plea is taken in consideration
Category range
Reflect degrees of seriousness
Starting point Final adjustment
Offence range
Appropriate for each type of sentence
Category
• Determination of the category of the offence which depends on the culpability and the harm; or the seriousness of the offence.
Range
• Determination of the starting point and the category range . Many factors could increase the seriousness (i.e. recent conviction) or induce mitigation.
Review
• Review of the proposed fine face to the turnover, the impact , the factors which indicate a reduction etc.
• Possibility of given a reduction for guilty pleas
• Consideration by the court of the compensation and ancillary orders
Sentence
• Total sentence principle (just and proportionate)
• Give reasons for, and explain the effect of, the sentence
• Consideration (individuals) the time spent on bail
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Food Safety and Food hygiene
FSFH
CorporateManslaughter
CM
Health and Safety
HS
Theme Legislation
FSFH
Breach (Organisations and Individuals)• England
• Food Safety and Hygiene (England) Regulations 2013• Wales
• Food Hygiene (Wales) Regulations 2006• The General Food Regulations
CM • Corporate Manslaughter and Corporate Homicide Act 2007
HSBreach and breach of duty (Organisations and Individuals), Secondary Liability (Individuals)• Health and Safety at Work Act 1974
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Health and Safety
Food Safety and Food Hygiene
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Determining the offence category
using the culpabilityand harm factors
Starting point & categoryrange (based on the size of
the organisation, factualevents for adjustement)
Check whether the proposed fine based on
turnover is proportionate to the overall means of the
offender (financialinformation)
Consider otherfactors that may
warrant adjustmentof the proposed fine
Consider any factors whichindicate a reduction, such
as assistance to the prosecution
Reduction for guilty pleasCompensation and
ancillary orders
Totallly principle
Reasons
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Culpability Factor
Very High Deliberate breach of or flagrant disregard for the law
High
Offender fell far short of the appropriate standard Serious and/or systemic failure within the organisation
to address risks
Medium
Offender fell short of the appropriate standard in a manner that falls between descriptions in high and low culpability categories
Systems were in place but these were not sufficiently adhered to or implemented
Low
Offender did not fall far short of the appropriate standard
Minor failure which occurred as an isolated incident
The harm is determined by a
table based on the risk of harm:
• HS: seriousness + likelihood,
• FSFH: likelihood.
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HS
Moreover, in HS offences, we need to consider the potential number of person and whether it is a significant cause.
FSFH
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Very large
organisation
Where an offending
organisation’s turnover
or equivalent very
greatly exceeds the
threshold for large
organisations, it may be
necessary to move
outside the suggested
range to achieve a
proportionate sentence.
From £50 to £10,000,000
Can be unlimited (tried on indictment/summarily)
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Very large
organisation
Where an offending
organisation’s turnover
or equivalent very
greatly exceeds the
threshold for large
organisations, it may be
necessary to move
outside the suggested
range to achieve a
proportionate sentence.
From £100 to £3,000,000
Can be unlimited (tried on indictment/summarily)
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HS
• Remediation
• Forfeiture
• Compensation
FSFH
• Hygiene Prohibition orders
• Compensation
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Very close to the 9-step Health and Safety Organisations process
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CM
Determining the
seriousness of offence
Starting point & categoryrange
Check whether the proposed fine based on
turnover is proportionateto the overall means of
the offender
Consider other factorsthat may warrant adjustment of the
proposed fine
Consider any factorswhich indicate a
reduction, such as assistance to the
prosecution
Reduction for guiltypleas
Compensation and ancillary orders
Totallly principle
Reasons
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CM
• Step 1: Harm and culpability are very serious by definition. There is only 2 Offence Category A (high) and B (low) on 4 questions:
• How foreseeable was serious injury?
• How far short of the appropriate standard did the offender fail?
• How common is this kind of breach in this organisation?
• Was there more than 1 death, or a high risk of further deaths, or serious personal injury in addition to death?
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CM
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• Publicity Orders
• Remediation
• Compensation
From £180,000 to £20,000,000
Can be unlimited
CM
Health and Safety
Food Safety and Food Hygiene
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Determining the
offence category(Culpability & Harm)
Starting point & category range
(financial information)
Review any financialelement of the
sentence
Consider any factorswhich indicate a
reduction, such as assistance to the
prosecution
Reduction for guiltypleas
Compensation and ancillary orders
Totallly principle
Reasons
Consideration for
time spent on bail
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Culpability Factor
Very High Where the offender intentionally breached, or flagrantly disregarded, the law
High Actual foresight of, or wilful blindness to, risk of offending but risk nevertheless taken
Medium Offence committed through act or omission which a person exercising reasonable care
would not commit
Low Offence committed with little fault
The harm is determinate by the same mechanism than for the organisations:
• HS: table (seriousness + likelihood) + public/worker exposed + significant cause,
• FSFH: table likelihood.
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HS
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From conditional discharge to 2 years’ custody
When tried on indictment: unlimited fine and/or 2 year’s custody
When tried summarily: unlimited fine and/or 6 months’ custody
FSFH
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From conditional discharge 18 months’
custody
When tried summarily oron indictment:
unlimited fine and/or 2 year’s custody
(indictment) and/or 6 months’ custody (Wales
summarily)
HS
• Disqualification of director
• Remediation
• Forfeiture
• Compensation
FSFH
• Hygiene Prohibition order
• Disqualification of director
• Compensation
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Based at minimum on likelihood
Determination of a category range
(Fine/Custody must be within this category range)
Modulation by negative and positive factors (management,
previous convictions …)
Unlimited fines can occur
Already effective
• Manslaughter Corporate
• Health and Safety
• Food Safety and Food Hygiene
Organisations & Individuals
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