The deregulatory impulses of recent UK administrations have made new domestic safety and health laws a rarity in recent years, especially compared with previous decades.
The European Union’s OSH strategic framework, which runs from 2014 until 2020, prioritises embedding and simplifying existing regulations rather than introducing fresh ones, so the other major source of new UK safety regulation has also slowed to a trickle.
Safety and health practitioners may be relieved that they have been left alone – except for the occasional blip such as the Construction (Design and Management) Regulations 2015 – since each new statute makes more work for them.
But if new or amended duties are infrequent arrivals, there have been some substantial changes in recent years to the way breaches of existing ones can be treated by the courts.
In 2015, the cap on the capacity of magistrates’ courts to fine OSH offenders was lifted so, instead of a £20,000 maximum, they can now levy unlimited penalties.
Last year, the Sentencing Council issued new guidance to courts in England and Wales on sentencing breaches of the Health and Safety at Work Act and associated regulations and of the Corporate Manslaughter Act. It was prompted by a belief in the highest reaches of the judiciary that corporate safety failings by bigger organisations were not being penalised adequately. In their first 12 months the new guidelines pushed up the number of £1m-plus fines until it matched the combined total for the previous 20 years.
Jail sentences of up to 18 years are proposed for the most serious gross negligence offences
Now the Sentencing Council has shifted its focus from organisations to individuals involved in unlawful deaths. In July the council asked for comments on a proposed court guideline on offences including gross negligence manslaughter, in which the offender fatally breaches a duty of care towards the victim.
In a work setting, these charges are usually brought against business owners or managers who disregard the safety of their employees, by putting profit before protection for example, resulting in a death.
The proposal provides a schedule of penalties that vary according to the severity of the negligence and the offender’s culpability, but includes jail sentences of up to 18 years for the most serious offences.
To put this into context, the Sentencing Council’s own analysis of 16 offenders sentenced for gross negligence manslaughter in 2014 found their terms ranged from nine months to 12 years and four were suspended. The median sentence length was four years.
The consultation on the proposals closed on 10 October. Some submissions to the council suggested changes to the guidelines. The Law Society, for example, proposed a higher rating of culpability for individuals in senior management or training roles.
The final guideline is due to come into force in December 2018 but, whatever changes the council makes to its proposals, the result is likely to be more punitive sentences for company officers convicted of killing by gross negligence.
If you would like more details of the proposed gross negligence manslaughter sentencing guideline, Anne Davies will be discussing it in her session at IOSH 2017, to be held on 20-21 November at the ICC in Birmingham. Book your place at www.ioshconference.com.
IOSH Magazine webinar: A refresher of how the sentencing guidelines have made £1m-plus fines more frequent. View the extended webinar presentation slides.