Health, Safety and Environmental – March 2017

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Sentence reduction for guilty plea – new guideline published

On 7 March 2017, the Sentencing Council for England and Wales published a new definitive guideline on reduction in sentence for a guilty plea, which will apply where the first hearing is on after 1 June 2017.  The stated aim of the guideline – which is more restrictive than before – is to encourage those defendants who are going to plead guilty to do so as early in the court process as possible.

The guideline provides that, where a guilty plea is indicated at the first stage of proceedings, a reduction of one-third should be made.  This is subject to certain exceptions.  The first stage will normally be the first hearing at which a plea or indication of plea is sought and recorded by the court. This is instead of a defendant pleading guilty “at the first reasonable opportunity” as before.  There is then a maximum level of reduction of one-quarter, which decreases on a sliding scale to a maximum of one-tenth on the first day of trial.  If the plea is entered once the trial has begun, the reduction could potentially be reduced to zero.

Factors such as admissions at interview, co-operation with the investigation and demonstrations of remorse, should not be taken into account in determining the level of reduction (but considered separately and prior to any guilty plea reduction, as potential mitigating factors); neither should the strength of the evidence.

One of the exceptions is especially relevant in the context of health and safety and environmental prosecutions and other complex criminal regulatory cases. It is essential that defendants are given sufficient time to be able to properly understand and consider their position, to instruct lawyers and to take advice on how to plead; and for advisers to have the time to analyse the evidence (which can often be complex, technical and voluminous) and to advise on a plea accordingly (including considering whether there is a defence that the defendant did all that was reasonably practicable). This may simply not be possible ahead of the first hearing.  The exception provides that, where the court is satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner, a reduction of one-third should still be made.

The guideline goes on to say that, in considering whether the exception applies, sentencers should distinguish between cases in which it is necessary to receive advice and/or have sight of evidence in order to understand whether the defendant is in fact and law guilty of the offence charged, and cases in which a defendant merely delays a guilty plea in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal.

Thames Water given record fine for “entirely foreseeable and preventable” environmental breaches

Thames Water Utilities Limited has been ordered to pay over £20 million in fines and costs following multiple significant pollution incidents on the River Thames between 2012 and 2014, when sewage was repeatedly discharged illegally into the river and its tributaries, resulting in major environmental damage. The highly-publicised case was the largest freshwater pollution case ever brought by the Environment Agency (EA).  Investigations by its officers revealed “a catalogue of failures” by the company’s management, with the EA’s Chief Executive saying that the case “sends a clear signal to the industry that safeguarding the environment is not an optional extra, it is an essential part of how all companies must now operate”.  See the EA’s full press release here.  The company had already been fined twice before for similar incidents, including a fine of £1 million.

Other recent cases

  • The on-site project manager of a construction site in Mayfair was convicted of gross negligence manslaughter after three unsecured window frames left leaning against a building overnight fell on a passing pedestrian who died from her injuries. Sentencing is scheduled for May 2017. It has been reported that the Sentencing Council is working on a draft guideline for sentencing of individuals convicted of manslaughter. We will monitor and report on developments.
  • The Court of Appeal rejected an appeal by Havering Borough Council against a £500,000 fine imposed for health and safety breaches. One of the Council’s arguments was that the meaning of “substantial” reduction at step four of the sentencing guideline for health and safety offences should be at least 50%. Step four is when the court considers any wider impacts of the fine within the organisation or on innocent third parties. The guideline provides that, where the fine falls on public or charitable bodies, it should normally be substantially reduced if the offending organisation is able to demonstrate that the proposed fine would have a significant impact on the provision of its services. The Court of Appeal said that there was no authority provided to support the Council’s argument and nothing in the guideline to suggest it. It also commented that to be informed of what the sentences may have been in the past is not helpful to a sentencing court, which is required by law to follow any sentencing guideline in place.
  • Construction firm Laing O’Rourke was fined £800,000 after a worker was fatally crushed at Heathrow Airport.
  • Electrical appliance company Whirlpool UK Appliances Limited was fined £700,000 after a self-employed contractor fell from a height of nearly five metres and later died from his injuries.