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Wind Energy Network March 2017 issue

The criminal courts have now had some 12 months experience of operating the new sentencing guidelines and it is clear they have done so with enthusiasm. The implementation of the guidelines came hot on the heels of the magistrates’ courts being given unlimited sentencing power for fines; the combination of these two factors has seen an increase in the level of fines being imposed.

Whilst the guidelines relate directly to offences under the Health and Safety at Work Act 1974, the courts have been willing to utilise the same guidance on health and safety matters prosecuted by the Maritime and Coastguard Agency in respect of Merchant Shipping Act infringements, including conduct endangering life and property under s. 58, and unsafe management under s.100 of the Act.

Clearer guidance
Whilst the guidelines have seen a general increase in penalties they have also given more certainty in terms of sentencing practice, so that offenders have a clearer indication of the level of penalties they will face.

They have also provided some guidance to lawyers in respect of how to present pleas in mitigation. This is helpful in so much as informal indications given to the writer suggest that judges are being advised to reject longwinded speeches and the presentation of hefty bundles of documents in mitigation, with a view to concentrating on the sentencing guidelines and the circumstances of the offence itself.

Whilst probably not their intent, the guidelines also provide the industry with pointers on risk management practices. Whilst the ultimate aim is to avoid incidents, nevertheless some offences are strict liability, meaning there is no defence if the facts of the case are made. As a result, whilst accidents do happen, the guidelines assist in helping to minimise the repercussions.

Determining the offence category
At their most basic level, the guidelines consider the culpability (blameworthiness) of the offender followed by the risk of harm. It should be emphasised this second test is to risk of harm, not the actual harm done.

In terms of culpability, this is classified as follows:

Very high
Deliberate breach of or flagrant disregard for the law

Offender fell far short of the appropriate standard; for example, by:

  • failing to put in place measures that are recognised standards in the industry
  • ignoring concerns raised by employees or others
  • failing to make appropriate changes following prior incident(s) exposing risks to health and safety
  • allowing breaches to subsist over a long period of time

Serious and/or systemic failure within the organisation to address risks to health and safety

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

Offender did not fall far short of the appropriate standard; for example, because:

  • significant efforts were made to address the risk although they were inadequate on this occasion
  • there was no warning/circumstance indicating a risk to health and safety

Failings were minor and occurred as an isolated incident

Seriousness of harm
Once the level of culpability is identified then the risk of harm is established by referring to the “Seriousness of harm risked” table on page 5 of the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline to identify an initial harm category, based on the risk of harm created by the offence. The assessment of harm requires consideration of both the seriousness of the harm risked (A, B or C) by the offender’s breach and the likelihood of that harm arising (high, medium or low).

Obtaining financial information
Reference is then made to the turnover, or equivalent, of the offender (not profit). Depending on the turnover, reference is then made to a table of penalties (found on pages 7-8 of the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline), with companies categorised as follows:

  • Large – over £50 million turnover or equivalent
  • Medium – between £10m-£50m
  • Small – between £2m-£10m
  • Micro – under £2m

In addition to the penalty arrived at would be any reduction for a guilty plea, which can be up to one third for an early guilty plea at the first hearing, along with any payment of both the prosecution’s legal and investigatory costs.

Whilst any risk management should aim to reduce culpability to zero, in real terms the aim must be to bring the culpability into the lowest category, and to reduce the risk of harm to harm category 4. Any mitigation should also seek to achieve the same.

For help and advice on these or any other energy related legal issues, please get in touch with Andrew Oliver.

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