A practical guide to the new approach to sentencing of health and safety, food and environmental offences

New guidelines for the sentencing of environmental offences in the Magistrates and Crown Courts took effect from 1 July 2014 and have already resulted in large fines for corporate offenders. Their equivalent relating to health and safety and food hygiene and safety sentencing was published on 3 November 2015 and comes into force on 1 February 2016.

To which offences do the new guidelines apply?

For health and safety, the guidelines apply to all health and safety offences.

In the food arena, the guidelines apply to any breaches of the General Food Regulations 2004 (Reg 4) and the Food Safety and Hygiene (England) Regulations 2003 (Reg 17 and Reg 17(1), and the equivalent regulations in Wales).

The environmental guidelines apply to a specified list of environmental offences under the Environmental Protection Act 1990 and the Environmental Permitting (England and Wales) Regulations 2010. Relevant offences include unauthorised deposit, treatment or disposal of waste as well as illegal discharges to air, land and water. The guidelines should also be applied to another category of environmental offences, including breaches of the waste duty of care, illegal carriage and transfrontier shipment of waste and statutory nuisance. However, for that category of offences only certain of the guideline ‘steps’ (discussed below) should be applied; being steps 1-3, 5 and 6.

The guidelines apply to both individuals and organisations sentenced on or after 1 July 2014 (for environmental offences) and 1 February 2016 (for health, safety and food offences) irrespective of when the offence was committed. 

How have the environmental guidelines already changed sentencing for environmental offences and indicated the new landscape for sentencing in health and safety and food?

The changes come after the Sentencing Council for England and Wales concluded that the seriousness of some environmental offences was not being adequately reflected in the level of fines imposed, especially where the offenders were large, wealthy organisations whose offences were motivated by profit-making. 

The guidelines introduce a 12-step sentencing approach. Importantly, organisations are now categorised in terms of size by reference to annual turnover in order to help the courts impose fines which are more appropriate to the financial means of the offending organisation.

The new step approach to sentencing

The guidelines require a series of steps to be followed in order that the most appropriate financial penalty is imposed on the offender:

Step One (Environmental only): The court must consider making a compensation order, which requires the offender to pay compensation for any loss or damage resulting from the offence. Reasons should be given if this order is not made.

Step Two (Environmental only): (Crown Court only) The court must consider making a confiscation order if the Crown requests it or the Crown Court considers it appropriate.

Step Three (Step One for H&S): The category of offence is determined by reference to culpability and harm factors set out in the guideline, which operates on a sliding scale. 

Culpability is categorised as either deliberate, reckless, negligent, low or no culpability for environmental offences and very high, high, medium or low for health, safety and food offences.

The harm factors range from ‘Category 1’ (polluting material of a dangerous nature, major adverse effects to people or nature for environmental or death or very serious injuries with a high likelihood of harm for health and safety) to ‘Category 4’ (risk of minor, localised adverse effect for environmental and cases with low lower seriousness and low likelihood of harm for health and safety).

Step Four (Step Two for H&S): The court then refers to a table of starting points and category ranges for each type of organisation (micro, small, medium, and large) to determine the most appropriate fine. The corresponding starting point should be used to reach a sentence within the category range, with further adjustment within the category range for aggravating and mitigating features. The court must also take into account the general fine-setting principles of seriousness of offence, the means of the offender and proportionality.

This table sets out examples of how the starting points and category ranges would be applied to each type of organisation for a deliberate (or very high) category 1 offence:

Step Five and Six

(Step Three and Four for H&S): The court is advised to “step back” and consider whether, as a whole, the sentence meets the objectives of punishment, deterrence and removal of gain through the commission of the offence. For environmental offences, the Court ensures that the combination of financial orders (compensation, confiscation and fine) removes any economic benefit derived from the offence. For health and safety, the Court looks at whether a fine based on turnover is proportionate to the offence and any other factors which may warrant adjustment of the fine.

Step Seven (Step Four H&S): The court should consider any further factors which may warrant adjustment to the proposed fine,such as where the offender is a charitable body and the fine would have an adverse effect on provision of services or generally in health and safety to look at profitability of the organisation.

Step Eight (Step Five H&S): The court should consider any factors which may warrant a reduction in the fine, such as where the offender has been assisting the prosecution.

Step Nine (Step Six H&S): The court should account for any potential reduction for a guilty plea.

Step Ten (Step Seven H&S): The court must consider whether to also make ancillary orders (e.g. remediation by the offender, order the offender to be deprived of property used to commit the offence).

Step Eleven (Step Eight H&S): The court should consider whether the total sentence is just and proportionate to the offending behaviour; the ‘totality principle’.

Step Twelve (Step Nine H&S): The court must give reasons for and explain the effect of the sentence given.

The new guidelines in use

The Court of Appeal’s recent decision in R v Thames Water Utilities [2015] EWCA Crim 960 was the first reported case to look at a large company fined under the environmental sentencing guidelines and indicated the approach of the courts approaching punishment of large or very large organisations.

The case related to a pollution incident in an area of outstanding natural beauty. Thames Water was fined £250k, which it appealed to the Court of Appeal. Taking into consideration the organisation’s £1.9 billion turnover and £364 million profit the appeal was dismissed. The judges’ comments sent a very clear message to corporate offenders that, if convicted, they would receive much larger fines, in the worst cases expecting ‘fines in excess of £100 million’.

The Court of Appeal went on to explain that “the combination of financial orders must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to improve regulatory compliance.” This indicates that the levels of fines imposed under the new guideline are not only aimed at compensation for damage caused by the offence but to deter future infringements of environmental laws.

New sentencing guideline for health and safety and food hygiene and safety offences 

Whilst the guideline for health and safety and food safety and hygiene does not come into force until 1 February 2016, recent cases in the courts are already upping the penalty stakes. In September 2015, Hugo Boss (a company with UK turnover of £167.2m in 2013 and £192.8m in 2014) was fined £1.2 m following the death of a child in its Bicester Village store when an 18 stone mirror fell from the wall. Other large fines totalling £650k were imposed in October 2015 in relation to an offshore wind farm fatality.

What should businesses do?

The new guidelines look set to completely change the regulatory enforcement landscape for health, safety, food and environmental offences. Commentary in the Thames Water case suggests that courts will be aligning penalties in these areas to those seen in the financial regulatory arena and seven figure fines look set to become the norm. 

Against such a dramatic shift in the regulatory risk landscape, businesses should re-evaluate how they assess risk in these areas and consider whether existing business systems and processes are fit for purpose to ensure legislative compliance.

The guidelines can be found on the Sentencing Council’s website:

Health and Safety, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline here. 

Environmental Offences Definitive Guideline here.