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The Guideline Lottery

Published 23 January 2020

During the past year we have observed ongoing friction in relation to the application of the Sentencing Guidelines for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences in safety related prosecutions where the Sentencing Guidelines do not strictly apply.    

Where there is no definitive Sentencing Guideline for an offence, to arrive at a provisional sentence, one of the factors the Court should take into account is any definitive Sentencing Guidelines for analogous offences. The areas where there is a lacuna in the applicability of a specific Sentencing Guideline include CQC prosecutions, street works prosecutions and fire safety prosecutions. We summarise below the recent developments in these areas. 

CQC prosecutions

The fine of £500,000 imposed on Derbyshire County Council in December 2019 brought into focus the issue of whether or not the Sentencing Guidelines are being consistently applied in safety related prosecutions brought by the CQC under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Further, it raises the issue as to whether the Courts are finding ways to arrive at similar fine outcomes by a different route.

The Prosecution arose out of the death of a service user following a fall at a care home operated by the Council. The home did not have an up to date falls policy and no assessment of needs had been carried out.

The revenue of the Council combined with the above factors suggest that if the Sentencing Guidelines had been strictly applied, the organisation would have been categorised as a very large organisation and the starting point for the fine would be above £1 million. However the Court would have been cognisant that where the fine is being imposed on a public body, the fine should normally be substantially reduced if it can be demonstrated that it would have a significant impact on the provision of its services.

In the earlier CQC prosecution of Sussex Partnership NHS trust following the death of Jamie Osborne on the Healthcare Unit at HMP Lewes, the Trust admitted to failing to provide safe care and treatment and at the sentencing hearing in June 2020 was fined £200,000. In that case the Court applied the Sentencing Guidelines but made substantial discount to the proposed guideline fine to reflect the impact on the provision of services.

The Courts have been less willing to apply the Sentencing Guidelines to cases involving non-registration under the Health and Social Care Act 2008 and this may be due to the difficulty applying the culpability and harm factors to such cases.

Street Works

Section 65 of the New Roads and Street Works Act 1991 (NSWA) is often the basis for a prosecution by local authorities. The section is aimed at ensuring the safety of persons using the street. To that extent it might be argued that the section is clearly analogous with Health and Safety at Work Act offences.  

In two separate prosecutions brought by local authorities in London against Virgin Media Limited in 2019 it was contended that the Sentencing Guidelines should apply to the section 65 offences. However, it was  successfully argued that it would be inappropriate to adopt such an approach and the Court imposed lower fines than would otherwise have been the case had the Sentencing Guidelines been applied.

In general a consideration of fines under the New Roads and Street Works Act 1991 suggest that the Sentencing Guidelines are not being consistently applied. This is surprising in light of the analogous considerations in the assessment of culpability and harm. There are exceptions and the inconsistency of approach is evident in the fine of £385,000 imposed by Carlisle Magistrates Court in May 2018 on Virgin Media for NWSA offences.

Fire Safety Regulations

Similarly, fines in relation to breaches of fire safety regulations are not explicitly covered by health and safety Sentencing Guidelines. However, the case of R v Butt [2018] EWCA Crim 1617 offered helpful guidance on the approach to sentencing and commented:-

  • Fire is notoriously unpredictable and can spread far from its seat. For this reason serious breaches of fire safety regulations have been met with severe penalties. Applying the factors in the Sentencing Guidelines to offences involving risk of fire had the potential of distorting sentence levels upwards.
  • The structure of the Sentencing Guideline in identifying the steps involved in determining seriousness of the offending might usefully be followed to cases of this nature.

The approach advocated in the case of Butt is reflected in the fine of £90,000 imposed on Gold Care Consultancy Limited in May 2019 following the death of a service user in a fire at a care home operated by the Company.

The Future

The difficulty in tracing a consistent path through the decisions is that the majority of the cases referred to in this article were dealt with in the Magistrates Court where the sentencing remarks are unavailable. However, the expectation is that in all cases arising out of a risk to health and safety the prosecution is likely to be pushing for the application of the Sentencing Guidelines and in turn there would seem to be an increasing trend for the Court to either fully adopt the Sentencing Guidelines or at least strive to arrive at a comparable fine.

For defence lawyers the challenge will be in providing accurate advice on the likely fine in circumstances where the application of the Sentencing Guidelines is not mandatory. The difficulty will be in second guessing whether or not the Court will determine the offence is analogous to those that the Sentencing Guidelines were specifically targeted at.  The overriding message is that fines in cases on the periphery of the Sentencing Guidelines will continue to rise over the coming year.

For more information or advice on the Sentencing Guidelines, please contact one of our experts in our regulatory team.

Authors

Steven Harrison

Steven Harrison

Birmingham

+44 (0)121 698 5243

Key Contacts

Steven Harrison

Steven Harrison

Birmingham

+44 (0)121 698 5243

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