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Legal Minds

7 December 2015 / by / in

Head Case – new sentencing guidelines for health and safety

Star War fans will be familiar with the case of the head bumping stormtrooper who was among a squad of elite Galactic Empire soldiers in Episode IV that were sent to investigate an incursion on the first Death Star.

The Empire had learned that a security control centre overlooking Docking Bay 327 had suspiciously been locked. The squad’s leader/line manager was eventually able to open the door allowing the group to advance. However during this operation one of the stormtroopers hit his head on a door frame because he failed to duck when passing through. The result was mild concussion although the outcome could easily have been more serious.

In a subsequent accident investigation report by the Empire’s Chief Safety Adviser she concluded that while the immediate cause was stormtrooper error there were a number of underlying and systemic failures, including:

 – Failure to undertake a suitable and sufficient risk assessment

 – Failure to provide a suitable method statement for the operation

 – Inadequate instruction from the squad’s leader to the soldiers

 – Inadequate training

 – Poor helmet design

 – Poor doorway design

 – Failure to heed a previous incident – it was discovered there had been an almost identical adverse event in Episode II

Those responsible for writing the Empire’s corporate social responsibility policy might wish to contemplate the level of fine that could be incurred if this incident had come within the jurisdiction of the UK’s Health and Safety at Work etc Act 1974.

New sentencing guidelines for health and safety offences were published on 3 November 2015, and come into force on 1 February 2016 (see http://www.sentencingcouncil.org.uk/wp-content/uploads/HS-offences-definitive-guideline-FINAL-web.pdf). These are closely modelled on the guidelines for the sentencing of environmental offences already in place.

When a judge fines a company the guidelines require a step by step assessment based on the degree of culpability, the likelihood of harm, the level of harm or potential harm caused by the offence and the size of the defendant organisation by reference to its turnover. There are four categories of organisation: ‘micro’ (under £2m turnover), ‘small’ (£2m – 10m), ‘medium’ (£10m – £50m) and ‘large’ (£50m plus).

The guidelines set out a sentencing range for each category from which the judge determines the starting point and then considers aggravating and mitigating factors that respectively increase or decrease the fine within a sentencing range.

In the stormtrooper’s case the fine would be increased because of the failure to learn from a previous accident. The fine would not be reduced because of the stormtrooper’s own negligence. The guidelines specifically state that the actions of victims are unlikely to be taken into account because employers “are required to protect workers or others who may be neglectful of their own safety in a way which is reasonably foreseeable”.

For large organisations convicted of a health and safety offence resulting in a fatality with the highest level of culpability the range of fine is £2.6m to £10m. However fines for companies with significantly greater turnover than £50m could face even greater fines. Directors will have a sinking feeling reading the Court of Appeal judgment in the environmental case R v Thames Water [2015] EWCA Crim 960, equally applicable to the new sentencing regime, that in the future we could see fines in excess of £100m.

Health and safety legislation is goal setting, not prescriptive. It is about how a dutyholder manages health and safety risk. To the guidelines credit they seek to reflect the legislation by looking at the level and likelihood of exposure to risk in determining sentence. The problem is that risk is not a concept the courts are familiar with and in the wider public there are many misconceptions. The guidelines themselves arguably take a too simplistic and mechanistic approach.

Professor Ragnar Lofstedt, who carried out a government review of health and safety legislation, often cites the work of psychologist Professor Daniel Kahneman in the field of risk perception. Kahneman argues we estimate the probability of something happening based on how easily we can recall other instances to mind, rather than on how often it actually occurs. In his book Thinking, Fast and slow Kahneman says: “We are prone to overestimate how much we understand of the world and to underestimate the role of chance in events. Overconfidence is fed by the illusory certainty of hindsight”.

It seems the aim of the new guidelines is to achieve fines that are comparable with those for corporate financial wrongdoing. But there are differences. In work related incidents failure in most cases results from omission that is unintentional. Further the profit margins of industries such as manufacturing and construction are a fraction of financial institutions.

A consultation for the guidelines was issued in November 2014. This included draft guidelines which are almost identical to those that have been published. From the report about the consultation by Lord Treacy, the Chair of the Sentencing Council, it is clear, with the environmental guidelines already in place, major amendments were unlikely despite the concerns raised by the business community.

There were 104 responses to the consultation one of which was from Stephen King. No doubt this was not the well known author. However directors of major corporates reading the guidelines will discover horror and fantasy in equal measure.

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