Health and Safety – August 2017

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Draft sentencing guideline on gross negligence manslaughter, sentencing update and review of building regulations and fire safety.

Sentencing Council consults on gross negligence manslaughter sentencing guideline

The Sentencing Council is consulting until 10 October 2017 on a draft sentencing guideline for gross negligence manslaughter (in addition to other forms of manslaughter).  There is no existing guideline for this form of manslaughter.  Notably, the consultation paper says that the approach taken in developing the draft guidelines aims to regularise practice, rather than substantially alter it, other than in the case of the more culpable offences arising from health and safety breaches where it is anticipated that sentences will rise.  The offence range for gross negligence manslaughter is one to 18 years’ custody.  Gross negligence manslaughter occurs when the offender is in breach of a duty of care towards the victim, the breach causes the death of the victim and, having regard to the risk involved, the offender’s conduct was so bad as to amount to a criminal act or omission.

The draft guideline is set out on pages 57 to 61.  It sets out a step-by-step decision making process for the court to use, to ensure a consistent approach to sentencing across England and Wales.  Step one involves determining the offence category.  This reflects the severity of the offence and indicates the starting point and range of sentences within which the offender is sentenced.  The list of factors is exhaustive.  Step two relates to the starting point and category range.  Once the court has decided upon a provisional sentence using the relevant starting point and category range, it must then go on to consider any relevant aggravating and mitigating factors and the weight they are to be given. The factors at step two are non-exhaustive.  There follows a series of further steps, including reduction for guilty pleas.

At step one, there are four levels of culpability (ranging from very high culpability at Category A, which is likely to be rare, to lower culpability at Category D), but the paper says that a fair assessment of the offender’s overall culpability will require a balancing of the various factors.  We are told that developing a sentencing guideline for gross negligence manslaughter was particularly challenging because the offence occurs relatively rarely but in a very wide range of circumstances.  This is why a degree of flexibility in determining the culpability level is particularly necessary in relation to this guideline, which specifically warns against taking an overly mechanistic approach to applying the factors.

The assessment of culpability includes a consideration of the context of the act or omission that caused the death, the role played by the offender, the extent to which the offender was aware of the risk of death, the length of time over which the negligent conduct persisted, actions after the event, and the circumstances of the offender.  There are a number of factors which could be especially relevant in a health and safety context. For example, one of the factors in Category B (high culpability) is that the negligent conduct was motivated by financial gain (or avoidance of cost) which would apply, for example, where an employer decides not to provide adequate safety equipment to save money.  Another is where the offender was clearly aware of the risk of death arising from their negligent conduct.

In relation to harm factors, the harm caused will inevitably be of the utmost seriousness in all manslaughter cases and the loss of life is already taken into account in the sentencing levels at step two.  The sentence ranges at step two cover a very wide range of sentence outcomes.  As there are only four starting points, adjustment from the starting point may be necessary before any adjustment for aggravating and mitigating factors where a case does not fit squarely into a category.

In considering the factors that make an offence of gross negligence manslaughter more or less serious, the Sentencing Council concluded that it would be appropriate for sentences to increase in some situations.  It gives the typical example where an employer has had a long standing, utter disregard for the safety of employees and is motivated by cost cutting.  Page 28 of the paper sets out an example application of the guideline in a health and safety context.

The draft guideline is a further indication of the increasingly tough line being taken when it comes to health and safety breaches.  Since the new sentencing guideline for health and safety offences, corporate manslaughter and food safety and hygiene offences came into force in February 2016, we have seen a marked rise in the severity of the fines imposed.

Sentencing update

Tata Steel UK Limited was fined £930,000 after the release of toxic and flammable substances at its Scunthorpe site exposed five workers to the risk of serious injury of death.  A Health and Safety Executive (HSE) investigation found that the company failed to take the appropriate safety measures and failed to address risks which had previously been identified.  It was also ordered to pay costs of £70,000.

A company was fined £100,000 and one of its directors was sentenced to six months’ imprisonment (suspended for two years) after removing licensable asbestos materials in an unsafe manner at a number of sites.  The HSE inspector said: “Around 3000 people a year die from asbestos related disease and it is a well-known risk within the construction industry, there is no excuse for putting people at risk when the hazards can be controlled with careful management during work with asbestos containing materials.”

Just last month, three companies were fined a total of more than £1 million after workers were exposed to asbestos while refurbishing a school.  The HSE investigation found that, although an asbestos survey was completed, there were multiple caveats and disclaimers which were not appropriately checked.

A passenger air transport firm was fined £250,000 after an employee suffered severe brain damage when she was crushed opening a hangar door at Luton Airport.  The HSE investigation found that the company failed to conduct adequate planning or provide adequate training and written instructions.  The HSE inspector said: “Employers must provide suitable systems of work, training, information and supervision to ensure safety. If a safe system of work had been in place prior to this incident, it could have prevented the life-changing injuries sustained by the employee.”

Government announces review of building regulations and fire safety

The government has announced an independent review of building regulations and fire safety in the wake of the Grenfell Tower disaster.  It will look at current building regulations and fire safety with a particular focus on high rise residential buildings and will examine:

  • the regulatory system around the design, construction and on-going management of buildings in relation to fire safety;
  • related compliance and enforcement issues; and
  • international regulation and experience in this area.

The terms of reference for the review were published on 30 August 2017.  An interim report is expected before the end of the year, with a final report no later than spring 2018.