Greater consistency and fairer sentences
The new guidelines came in to force in February 2016. The intention of the guidelines is to improve the consistency of sentencing but also to address a perception that in the past, larger organisations have not been sentenced heavily enough for high profile incidents affecting large numbers of people.
In summary there are 9 steps in the guidelines that the courts need to go through when sentencing organisations. They require the court to assess the culpability and harm of the organisation using tables provided in the guidelines to determine the offence category. The next step is to then consider the annual turnover of the company involved to reach a starting point for the fine. Organisations with a turnover classed as large (£50 million) or very large (greatly exceeding £50 million) have higher starting points for fines. The court then goes through various other steps to ‘fine- tune’ the sentence. A similar approach is used when sentencing individuals in order to reach custodial sentences and fines.
We’ve now had the opportunity for a few months to start seeing the effect they’re having on sentencing. It’s still early days however and it seems that many cases were pushed through before February 2016. During this period, I’ve spent some time listening and reading various people’s analysis and thoughts on the guidelines and also looking at what is actually happening so far.
There is some thought that the guidelines are not going to deliver the desired effect and that rather than just hitting large companies hard, many other companies will also experience much larger fines. This might not necessarily be a bad thing if it ‘encourages’ companies to manage health and safety effectively. It might however take some time for the message to get through to the more unscrupulous organisations and even then they still may not care. The new guidelines also allow a lot of adjustments to be made to the sentence and therefore it may seem that sentencing is still ‘unfair’ when looking at cases coming through. Step 9 of the guidelines is therefore going to be important as it requires the court to give reasons for the sentence and explain the effect. This will hopefully give some transparency to the decision reached.