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    SENTENCING GUIDELINES UNDER THE MICROSCOPE

    Lawyer argues guidelines undermine reduction in ‘regulatory burden’

    The new Sentencing Guidelines for health and safety offences came into force on 1 February 2016 and have resulted in a significant increase in fines.

    Legal firm TLT LLP has published an In-Depth Update entitled – The Health and Safety Sentencing Guidelines – significant effect on health and safety or disproportionate increase in the regulatory burden? – prepared by Legal Director Adrian Mansbridge.

    The analysis concludes that “efforts by government to deregulate and reduce the burden of health and safety compliance have, from a financial perspective, been largely undone by the guidelines.”

    The update examines whether the guidelines have improved health and safety compliance for both SMEs and large corporations and reduced the regulatory burden on business.

    The concluding remarks are reproduced below and the full update can be downloaded from the TLT website.

    Impact of guidelines on sentencing?

    “There were 593 cases brought in 2016/17, less than the 711 in 2015/16 but in line with historic numbers (ie 604 in 2013/14).

    In 2014/15, ie before the guidelines, total fines were £18,072,811, in 2015/26 this increased to £38,798,163 and then in 2016/17 to £69,949,077.

    In other words, the total fines levied in the first year in which the new Guidelines were fully implemented were nearly four times higher than those in the last full year before they were implemented, and nearly twice as high as the previous year despite over a hundred fewer cases being sentenced.

    Average fines per offence increased from £29,197 in 2014/15 to £126,262 in 2016/17, an increase of 332%. There is no breakdown of the size of the offenders but it is extremely difficult to envisage that the percentage of total revenue attributable to large organisations has not increased significantly.

    This suggests that, far from equitably shifting the regulatory burden to larger companies (however questionable that approach might be), the new guidelines have simply increased the regulatory burden for larger companies with no reduction in the burden of compliance costs already faced by smaller organisations.

    It is not clear who benefits from this approach as:

    • Organisations are deprived of resources that could be invested in safety by increased fines;
    • The prospect of large fines creates an incentive to defend health and safety prosecutions as a reduction in harm or culpability categories even following an unsuccessful defence typically outweighs the discount for guilty plea. This means more Court time and resources is taken up dealing with cases;
    • Attention and enforcement resource is drawn away from the statistically most risky organisations by publicity focused on large fines;
    • The separate legal persona of group companies creates an incentive to hive off high risk activities into separate entities to prevent group turnover being taken into account, this is conversely likely to mean less money and management resource is available to manage those risks;
    • A compliance based approach to health and safety, as opposed to a risk based approach, is more likely to be favoured by businesses seeking to minimise fines. This would be counter to the views of leading experts, such as ROSPA, about how best to improve safety performance;
    • There is no evidence that this approach to sentencing has had a beneficial effect on accident rates;
    • The burden of compliance will increase, ultimately pushing up costs for industry and thence to consumers for no clear benefit; and
    • Investment in high risk-low profit sectors will become less attractive as the risk of enforcement is high due to penalties based on turnover.

    It is unlikely there will be calls to change the guidelines for the benefit of the small number of large organisations sentenced each year, but it will be interesting to see if any future review carried out by the Sentencing Guidelines Council examines the evidence and, if so, what weight is given to these issues.

    What is clear is that efforts by government to deregulate and to reduce the burden of health and safety compliance have, from a financial perspective, been largely undone by the Guidelines which, insofar as they prompt renewed investment, are likely to do so with a focus on minimising enforcement risk.”

     

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