Health and Safety isn’t sexy, but neither is life imprisonment

New sentencing guidelines for manslaughter offences were published July this year and will come into force in courts on 1 November 2018.

Safety PAL is a unique Health and Safety Management System built from a requirement to ensure companies do what they need to do rather than what they want to do.

We always enjoy posting guest blogs which help all our followers and subscribers improve health and safety.

This article has been written by a mutual friend and colleague who has spent many more years than I providing essential support and tools businesses need in preventing harm and achieving compliance.

Melvyn Hodgetts is an independant experienced safety professional with over 25 years broad health and safety experience in UK industry.

After attending a recent talk I was giving, Melvyn was good enough to expand on specific parts of current and new legislation not everyone realised existed and or indeed understood.

 

What are the sentencing guidelines?

The Sentencing Council, the independent body responsible for developing sentencing guidelines for courts in England and Wales to use when passing a sentence, published new sentencing guidelines for manslaughter offences on 31 July 2018. These will be coming into effect on 1 November 2018.

The guideline specifies offence ranges – the range of sentences appropriate for each type of offence. Within each offence, the Council has specified a number of categories which reflect varying degrees of seriousness. The offence range is split into category ranges – sentences appropriate for each level of seriousness.

The Council has also identified a starting point within each category.
Starting points define the position within a category range from which to start calculating the provisional sentence.

The judges must follow this nine-step approach in determining sentences for all health, safety, food safety and hygiene offences, including gross negligence manslaughter, which is the most serious offence that can be committed by individuals for a health and safety breach.

 

What is gross negligence manslaughter?

Gross negligence manslaughter is a form of involuntary manslaughter committed by an individual whose gross breach of a duty of care causes or materially contributes to a death.

For example, a director or manager is likely to be charged with manslaughter by gross negligence if prosecutors consider that they completely disregarded the safety of an employee and this specifically resulted in their death.

 

What are the key details of the new guidelines?

Under the guidelines, the severity of sentences is determined by an assessment of two factors – the harm caused to the victim and the culpability of the offender.

The level of harm is always going to be the highest possible in manslaughter cases as it involves a fatality. Therefore, the maximum sentence in law is life imprisonment.

However, sentences can range from suspended sentences to substantial life terms to reflect the hugely variable circumstances and levels of culpability in manslaughter cases.

There are four levels of culpability, which range from ‘low’ to ‘very high’, each of which leads to a different jail term starting point. For gross negligence manslaughter, the starting points are 2 years, 6 years, 12 years and 18 years’ custody for culpabilities of ‘low’, ‘medium’, ‘high, and ‘very high’ respectively.

The judge assesses a range of factors to determine culpability, such as prior knowledge of the breach, intent of the offender etc.

The judge can also consider a range of factors to move the offender within a specified range around each starting point, such as seeking to wrongly blame others etc.

 

How does this affect individuals?

Following the introduction of the sentencing guidelines for health and safety offences and corporate manslaughter in February 2016, there has been a steady increase in fines and a reduced threshold for individuals to be jailed for up to two years.

The new guidelines mean that there is an increased risk of a lengthy custodial sentence for an individual convicted of manslaughter by gross negligence.

In a workplace fatality, an individual could be accused of negligent conduct if they allowed the risk of death to be present to cut costs or time. For example, if a risk assessment identified a risk of death and reasonably practicable control measures but these were not implemented, these factors point strongly towards ‘high’ culpability, as:

  • The offender was aware that the breach could cause death;
  • They allowed the breach to persist for any significant amount of time;
  • They were motivated by financial gain or to avoid costs;

Most significantly, where more than one of these ‘high’ factors are present, the sentencing can easily fall into the ‘very high’ category with a sentencing range of 11 – 24 years’ custody.

Therefore, the actions or omissions of directors or managers in such circumstances can have a significant impact on their sentencing in a manslaughter case.

 

Case studies

In October 2015, Truro Crown Court sentenced a farmer and his employee to four years in jail over the death of a contractor who was electrocuted when his ladder touched an overhead power cable. Roger Matthews and his employee Norman Treseder were found to be “grossly negligent” following the death of 33-year-old Jason Morgan, from Bristol, who died while working at Great Brynn Barton Farm near Roche, Cornwall in June 2011.

In April 2017, a mother Lucy King was jailed for three and half years after her two-year-old daughter died when she swallowed a heroin substitute used by the mother. Ms King had left a cup containing methadone on the floor while she slept.
According to Croner-i, the prosecution said in court:

“That is the tragic reality. The failing was so basic, so far removed from the standard of care that a mother should owe to her child, that it was grossly negligent.”

In May 2017, a construction supervisor was jailed for a year for gross negligence manslaughter over the death of a lawyer crushed by half-tonne windows. Amanda Telfer, 43, was killed when a stack of large unglazed frames collapsed on her as she walked past a building site in central London. Members of the public rushed to help, but Telfer could not be saved and she was pronounced dead at the scene.
A jury found the supervisor at IS Europe Ltd, Kelvin Adsett, guilty of manslaughter and breaching health and safety legislation. Sentencing him to 12 months in prison, Judge Peter Rook QC told him: “Your actions contributed to the wholly needless and untimely death of Amanda Telfer.
” The judge said he had shown “reckless disregard” for what was a life-threatening situation.

July 2017 a Company Director Dale Pike was sent to prison for 32 months after being convicted of gross negligence manslaughter.
He employed a vulnerable individual to collect golf balls from a lake at around £20-£40 per day when the normal rate was around £1000 per day.
The Judge indicated in his sentencing remarks that the deceased;

“was an unsuitable contender for the diving work you employed him to undertake, but you allowed him to take those risks to make a quick buck”

“The risk of death or serious injury was obvious to you, but your cavalier attitude towards safety was the cause of Mr P’s death”

October 2018 a sole director has been threatened with prison after a joint operation uncovered a series of safety and health fraud offences.
Barrie John Henry Birch was sentenced to 18 months’ jail, suspended for two years, and disqualified from being a company director for five years after his firm, BBS Improvements, carried out unsafe and unnecessary building work. Workers were put at risk because there was no scaffolding.
The fraudulent activity was uncovered when a member of the public lodged a complaint with Worcestershire Trading Standards about BBS Improvements’ work on the roof of a domestic property in Redditch in May 2017.

The Guardian also details in a July article… The new advice from the Sentencing Council could affect the outcome of prosecutions arising from the Hillsborough disaster and the Grenfell Tower fire.

What should Directors and Managers do?

You need to ensure that your company is continuing to improve its health and safety management. Some key factors to ensure are:

  • Directors need to ensure that they are actively driving the health and safety culture of their businesses from the top.
  • Directors and managers need to be reminded of their responsibilities in relation to health and safety management and the results of failing to fulfil these responsibilities.
  • Directors and Managers need to ensure that all work activities are appropriately risk assessed and planned.

 

Closing

On 31 July 2018 the new sentencing guidelines for manslaughter offences were published by the Sentencing Guidelines Council. The impact on health safety offences is felt through the revised guidelines for gross negligence manslaughter. The new guidelines come into effect on 1 November 2018 and will apply from that date regardless of when the offence was committed.

Typically in health and safety cases we have seen the organisation being prosecuted for Corporate Manslaughter or offences under the Health and Safety at Work 1974, however, there is a growing trend by the Police to focus in on the individuals within organisations, and these guidelines have the potential to massively increase custodial sentences.

The increased risk of lengthy custodial sentences in the sentencing guidelines comes from the now familiar assessment of culpability that we saw introduced in the 2016 sentencing guidelines for corporate manslaughter and health and safety offences.

Criteria contained within the ‘high culpability’ category include cost savings, and that the offender was aware of risk of death due to negligent conduct.
It is therefore easy in health and safety cases to see how an individual could be accused of allowing the risk of death to be present due to costs concerns if for example a risk assessment identifies a risk of death and remedial measures that are cost proportionate and yet nothing is done and death occurs.

Although one might expect, and hope that most cases will fall in the ‘medium’ culpability bracket (even with its starting point of 6 years custody with a range of 3-9 years), some of the criteria for high culpability are arguably easy to meet in a health and safety case.

The reality is that anyone of the criteria in the guidelines for high culpability could result in the offender being deemed to be highly culpable.This then means that the sentencing starting point goes to 12 years with a range available to the court of 8 -16 years.

Under the new guidelines both cost savings and an awareness of the risk of death were present and the negligent conduct took place and therefore under the new guidelines the Directors culpability would undoubtedly be assessed as high and therefore attract a starting point of 18 years, a sentence three times longer than the one that was imposed.

Ultimately the message to individuals remains the same. Ensure that health and safety in the work place is managed properly and in the event of a fatal accident get legal support straight away.

 

Useful links

Thank you to all these articles and data sources which provided the details needed to complete the article:

https://www.sentencingcouncil.org.uk/wp-content/uploads/HS-offences-definitive-guideline-FINAL-web.pdf

http://www.hse.gov.uk/pubns/wrdp1.pdf

http://www.hse.gov.uk/enforce/enforcementguide/wrdeaths/investigation.htm

https://www.theguardian.com/law/2018/jul/31/gross-negligence-manslaughter-jail-terms-rise-england-wales

https://app.croneri.co.uk/feature-articles/prison-awaits-gross-negligence-manslaughter

https://www.ioshmagazine.com/article/director-put-workers-risk-unnecessary-building-project

http://www.melvynhodgetts.co.uk/

Protect your business and your family should the worst happen.

 

Note from our founder

“If everyone who reads this article took a minute to review current policies and procedures in their organisation and made the appropriate updates to ensure they are doing everything practicably possible… Workplace accidents and convictions would dramatically reduce instead of director convicitons being at their highest ever”

Please share, like and send any feedback, we really do like to hear back from you guys.

Karl Spencer

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