The document summarizes new sentencing guidelines in the UK that apply to organizations convicted of corporate manslaughter, health and safety, food safety, and hygiene offenses. The guidelines may result in higher penalties, especially for large organizations that created risks of death or serious injury. The guidelines address determining offense categories, starting points and ranges, factors that could warrant adjustment, and reductions for assistance and guilty pleas. Recent cases that applied the guidelines are highlighted. Commercial concerns for organizations given increased prosecutions and larger potential fines are also noted.

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New Sentencing Guidelines
The Chartered Institute for the
Management of Sport and
Physical Activity
David Egan
Partner
David.Egan@dwf.law
07711 561 903

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Sentencing Guidelines: The Background
Who do they apply to?
•New sentencing guidelines from the Sentencing Council apply to
the sentencing of organisations convicted of corporate
manslaughter, health and safety, food safety, and hygiene
offences, and aim to ensure a consistent, fair and proportionate
approach.
What do they mean?
•The guidelines will result, in some cases, in offenders receiving
higher penalties than previously, particularly large organisations
convicted of creating a risk of death or serious injury.
When will they apply?
•The guidelines came into force in the Courts on 1 February 2016.
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Sentencing Guidelines: Procedure
1.Determining the
offence category
2.Starting point
and category
range
3. Is the fine
proportionate to
the means?
4. “Other factors”
to warrant
adjustment
5. Reduction for
Assistance
6. Reduction for
Guilty Plea
7. Compensation
and Ancillary
Orders
8. Totality
Principle
9. Reasons

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Sentencing Guidelines: The Numbers

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Sentencing Guidelines: Recent Sentencing Decisions
National Grid £2m fine plus costs of
£36,102.90
Balfour Beatty £1m fine plus costs of £14,977
C.R.O Ports London Limited
Baldwins Crane Hire
£1.8m fine plus costs of
£14,328
£700k fine plus costs of
£200,000

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Sentencing Guidelines: Commercial Concerns
The Number of prosecutions for health and safety offences is likely to
increase. In addition to the prospect of larger fines, the new Health
and Safety guidelines also raise the following wider commercial
concerns:
1.Reappraisal of risk registers and implications;
2.Ensuring that risk assessments are conducted and reviewed on a regular
basis;
3.Greater focus upon issues of corporate governance;
4.Continued need to ensure individuals are aware of their duties; both
individually and as a key element of organisational compliance; and
5.Increased need for robust incident management procedures.

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Involvement of the Health and Safety Inspector
Issues covered:
1.Initial Enforcement Power
2.Powers of Inspection
3.The Shield of Legal Privilege
4.Witness Statements
5.Interviews under Caution
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Initial Enforcement Power
Improvement Notices
•Section 21 HSWA:
– If an inspector is of the opinion that a person—
a) is contravening one or more of the relevant statutory provisions; or
b) has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue
or be repeated,
Key considerations:
•Test applied at the time of issue, not incident
•An improvement notice requires the company to remedy the contravention/s identified by the HSE within such
period as specified by the notice.
•Publically searchable
•Right of Appeal through ET – strict timescales
•Failure to comply with notice = criminal offence
•Consider carefully whether to lodge an appeal
•Invokes right of recovery of fees under FFI
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Prohibition Notices
• Section 22 of the HSWA
– If inspector is of the opinion that, any activities involve, as carried on or likely to be carried on by or under the control of the
person in question, a risk of serious personal injury, the inspector may serve on that person a Prohibition Notice
• A prohibition notice directs that the activities to which the notice relates shall not be carried on by or under the
control of the person/company on whom the notice is served unless the matters specified in the notice and any
associated contraventions of provisions have been remedied
• Similar implications to IN
• Most restrictive means of enforcement action
• Consider carefully whether to lodge an appeal
Initial Enforcement Power
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Powers of Inspection
Section 20 of the HSWA sets out the powers of health and safety inspector – all duty holders must
be aware of these.
These powers allow the health and safety inspector to:
•At any reasonable time (or, in a situation which in his opinion is or may be dangerous, at any time)
to enter any premises which he has reason to believe it is necessary for him to enter
•To take with him any other person duly authorised by his enforcing authority; and any equipment
or materials required for any purpose for which the power of entry is being exercised
•To take such measurements and photographs and make such recordings as he considers
necessary for the purpose of any examination or investigation
•To take samples of any articles or substances found in any premises which he has power to enter,
and of the atmosphere in or in the vicinity of any such premises
•In the case of any article or substance found in any premises which he has power to enter, being
an article or substance which appears to him to have caused or to be likely to cause danger to
health or safety, to cause it to be dismantled or subjected to any process or test
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• To require any person whom he has reasonable cause to believe to be able to give any
information relevant to any examination or investigation to answer such questions as the
inspector thinks fit to ask and to sign a declaration of the truth of his answers;
• It should be noted that no answer given by a person in pursuance of a requirement to answer
questions asked by the inspector shall be admissible in evidence against that person.
• To require the production of, inspect, and take copies of or of any entry in any books or
documents which by virtue of any of the relevant statutory provisions are required to be kept; and
• Any other books or documents which it is necessary for him to see for the purposes of any
examination or investigation
• To require any person to afford him such facilities and assistance with respect to any matters or
things within that person’s control or in relation to which that person has responsibilities as are
necessary to enable the inspector to exercise any of the powers conferred on him by this section
Powers of Inspection (continued)
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Legal Privilege
• Legal advice privilege and litigation privilege
• Importantly, section 20 powers cannot compel the production of documents which are
entitled to be withheld on grounds of legal professional privilege
• On 5th November 2015 the High Court confirmed that legal advice privilege is not
restricted to communications that actually contain legal advice
• Legal advice privilege may extend to factual summaries and meeting minutes where
they are created in a legal advice context and form part of a continuum of
communications between lawyer and client.
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Witness Statements
• Voluntary Statements
– A witness statement can be provided voluntarily in compliance with the Criminal
Justice Act 1967 - known as "section 9 statements"
– A section 9 statement does not rely on the HSE inspector using his powers under
s20(2) HSWA
– Any witness statement must be signed by the person to confirm that the contents of
the statement are true
– Rare that statements are not provided on a voluntary basis
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Compelled Statements
•Section 20 HSWA gives the HSE inspector the power to require any person whom they
have reasonable cause to believe will be able to provide information relevant to the
examination or investigation
•A HSE inspector must make it clear to the witness that they are using their compulsory
powers before asking any questions
•Any answers given by a person compelled to answer the HSE inspector’s questions
are not admissible against that person
Witness Statements
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Interview Under Caution - PACE Requirements
• HSE can invite a company/individual to attend a formal interview under caution, often
referred to as a Police and Criminal Evidence Act (PACE) interview
• HSE must suspect a company/individual of committing a criminal offence in breach of
the HSWA and/or related regulations.
• Answers given capable of being admissible in evidence in a prosecution
• Court can draw adverse inferences where a defendant, at an interview under caution,
fails to mention a fact relied on in their defence which, in the circumstances, they
could reasonably have been expected to mention at the time of the interview
• Not obliged to accept the invitation to attend
• Various options available to a company/individual in response
• You should always have this in mind as the end game of any investigation
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