Health & Safety, Corporate Manslaughter, Food Safety and Hygiene Offences

Definitive Guideline – February 2016
April 2016 All rights reserved – Sybille CZERNIAKOWSKI – iprp@sybille.cz 1
Download the guideline here:
http://www.sentencingcouncil.org.uk/publications/item/health-and-safety-offences-corporate-
manslaughter-and-food-safety-and-hygiene-offences-definitive-guideline/

• Offences committed after 6 April 2010
• Offenders aged 18 and older (ind.)
• Sentenced on or after 1 February 2016
• 9-step process
Coroners and Justice Act 2009, section 125(1)
Every court –
a) must, in sentencing an offender,
follow any sentencing guidelines
which are relevant to the offender’s
case, and
b) must, in exercising any other function
relating to the sentencing of offenders,
follow any sentencing guidelines
which are relevant to the exercise of the
function
unless the court is satisfied that it would be
contrary to the interests of justice to do so.
Appropriate sentence
Credit for a guilty plea is taken in consideration
Category range
Reflect degrees of
seriousness
Starting point Final adjustment
Offence range
Appropriate for each type of sentence

Category
• Determination of the category of the offence which depends on the culpability and the harm; or the seriousness of
the offence.
Range
• Determination of the starting point and the category range . Many factors could increase the seriousness (i.e. recent
conviction) or induce mitigation.
Review
• Review of the proposed fine face to the turnover, the impact , the factors which indicate a reduction etc.
• Possibility of given a reduction for guilty pleas
• Consideration by the court of the compensation and ancillary orders
Sentence
• Total sentence principle (just and proportionate)
• Give reasons for, and explain the effect of, the sentence
• Consideration (individuals) the time spent on bail

Food Safety
and Food
hygiene
FSFH
Corporate
Manslaughter
CM
Health and
Safety
HS
Theme Legislation
FSFH
Breach (Organisations and Individuals)
• England
• Food Safety and Hygiene (England) Regulations 2013
• Wales
• Food Hygiene (Wales) Regulations 2006
• The General Food Regulations
CM • Corporate Manslaughter and Corporate HomicideAct 2007
HS
Breach and breach of duty (Organisations and Individuals),
Secondary Liability (Individuals)
• Health and Safety at Work Act 1974

Health and Safety
Food Safety and Food Hygiene

Determining the
offence category
using the culpability
and harm factors
Starting point & category
range (based on the size of
the organisation, factual
events for adjustement)
Check whether the
proposed fine based on
turnover is proportionate to
the overall means of the
offender (financial
information)
Consider other
factors that may
warrant adjustment
of the proposed fine
Consider any factors which
indicate a reduction, such
as assistance to the
prosecution
Reduction for guilty pleas
Compensation and
ancillary orders
Totallly principle
Reasons

Culpability Factor
Very High  Deliberate breach of or flagrant disregard for the law
High
 Offender fell far short of the appropriate standard
 Serious and/or systemic failure within the organisation
to address risks
Medium
 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
Low
 Offender did not fall far short of the appropriate
standard
 Minor failure which occurred as an isolated incident
The harm is
determined by a
table based on the
risk of harm:
• HS: seriousness +
likelihood,
• FSFH: likelihood.

HS
Moreover, in HS offences, we need to consider the potential number of person and whether it is a significant cause.

FSFH

Very large
organisation
Where an offending
organisation’s turnover
or equivalent very
greatly exceeds the
threshold for large
organisations, it may be
necessary to move
outside the suggested
range to achieve a
proportionate sentence.
From £50 to £10,000,000
Can be unlimited (tried on
indictment/summarily)

Very large
organisation
Where an offending
organisation’s turnover
or equivalent very
greatly exceeds the
threshold for large
organisations, it may be
necessary to move
outside the suggested
range to achieve a
proportionate sentence.
From £100 to £3,000,000
Can be unlimited (tried on
indictment/summarily)

HS
• Remediation
• Forfeiture
• Compensation
FSFH
• Hygiene Prohibition orders
• Compensation

Very close to the 9-step Health and Safety Organisations process
CM

Determining the
seriousness of
offence
Starting point & category
range
Check whether the
proposed fine based on
turnover is proportionate
to the overall means of
the offender
Consider other factors
that may warrant
adjustment of the
proposed fine
Consider any factors
which indicate a
reduction, such as
assistance to the
prosecution
Reduction for guilty
pleas
Compensation and
ancillary orders
Totallly principle
Reasons
CM

• Step 1: Harm and culpability are very serious by definition.There is
only 2 Offence Category A (high) and B (low) on 4 questions:
• How foreseeable was serious injury?
• How far short of the appropriate standard did the offender fail?
• How common is this kind of breach in this organisation?
• Was there more than 1 death, or a high risk of further deaths, or serious
personal injury in addition to death?
CM

• Publicity Orders
• Remediation
• Compensation
From £180,000 to £20,000,000
Can be unlimited
CM

Health and Safety
Food Safety and Food Hygiene

Determining the
offence category
(Culpability & Harm)
Starting point &
category range
(financial information)
Review any financial
element of the
sentence
Consider any factors
which indicate a
reduction, such as
assistance to the
prosecution
Reduction for guilty
pleas
Compensation and
ancillary orders
Totallly principle
Reasons
Consideration for
time spent on bail

Culpability Factor
Very High  Where the offender intentionally breached, or flagrantly disregarded, the law
High  Actual foresight of, or wilful blindness to, risk of offending but risk nevertheless taken
Medium
 Offence committed through act or omission which a person exercising reasonable care
would not commit
Low  Offence committed with little fault
The harm is determinate by the same mechanism than for the organisations:
• HS: table (seriousness + likelihood) + public/worker exposed + significant cause,
• FSFH: table likelihood.

HS
From conditional discharge to 2
years’ custody
When tried on indictment: unlimited
fine and/or 2 year’s custody
When tried summarily: unlimited
fine and/or 6 months’ custody

FSFH
From conditional
discharge 18 months’
custody
When tried summarily or
on indictment:
unlimited fine and/or 2
year’s custody
(indictment) and/or 6
months’ custody (Wales
summarily)

HS
• Disqualification of director
• Remediation
• Forfeiture
• Compensation
FSFH
• Hygiene Prohibition order
• Disqualification of director
• Compensation

Based at minimum on likelihood
Determination of a category range
(Fine/Custody must be within this
category range)
Modulation by negative and
positive factors (management,
previous convictions …)
Unlimited fines can occur
Already effective
• ManslaughterCorporate
• Health and Safety
• Food Safety and Food Hygiene
Organisations & Individuals

Health & Safety, Corporate Manslaughter, Food Safety and Hygiene Offences

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