Health and Safety – March 2019

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Sentencing Council consults on expanded explanations in sentencing guidelines; other sentencing news; government Walker Morris risk series stampconsults on further advertising restrictions for HFSS products.

Sentencing Council consults on expanded explanations in existing guidelines

The Sentencing Council is consulting until 23 May 2019 on proposals to provide expanded explanations in offence-specific sentencing guidelines for sentencing adults and organisations. This will include the various guidelines for health and safety, food safety and food hygiene, corporate and gross negligence manslaughter. The aim is to provide sentencers and other court users with useful information relating to commonly used factors in guidelines and also to improve transparency for victims, defendants and the wider public. The Sentencing Council is consulting about both the concept of providing the additional information and the content of the information itself.

Explanations have only been proposed for step two factors (aggravating and mitigating factors) and not for step one, because the step one factors in offence-specific guidelines are tailored to the individual guideline and the placement of a factor within a particular level of harm or culpability makes a difference to the effect that it has. The Sentencing Council decided to consult on the basis of applying standard explanations across all guidelines, rather than tailoring them depending on the particular guideline. This is for consistency and to ensure wide-ranging application.

Looking at the health and safety guideline in relation to organisations, the expanded explanation for the aggravating factor of ‘cost-cutting at the expense of safety’ provides that, where an offence has been committed wholly or in part for financial gain or the avoidance of cost, this will increase the seriousness, and where the offending is committed in a commercial context for financial gain or the avoidance of costs, this will normally indicate a higher level of culpability.

In relation to mitigating factors, the expanded explanation for ‘high level of co-operation with the investigation, beyond that which will always be expected’ provides that assisting or cooperating with the investigation and/or making pre-court admissions may ease the effect on victims and witnesses and save valuable police time justifying a reduction in sentence (separate from any guilty plea reduction at step four). The expanded explanation for ‘self-reporting, co-operation and acceptance of responsibility’ provides that, where an offender has self-reported to the authorities, particularly in circumstances where the offence may otherwise have gone undetected, this should reduce the sentence (separate from any guilty plea reduction at step four).

Note that the Sentencing Council says that the expanded explanations are designed to reflect current best practice rather than to alter sentencing practice.

Other sentencing news

A building firm was fined £900,000 (and ordered to pay costs of over £60,000) after an employee was fatally struck by falling masonry when a retaining wall collapsed. An investigation by the Health and Safety Executive (HSE) found that the company had failed to appropriately manage the work being carried out and failed to ensure the health, safety and welfare of employees on site.

A company was fined £400,000 (and ordered to pay costs of over £17,000) after a driver was killed when the grab arm he was using came into contact with an overhead power line. An HSE investigation found that the company, which managed the site, had identified such a risk in risk assessments but failed to implement them and adequately plan construction work and train its employees.

A chemical manufacturing company was fined £224,000 (and ordered to pay costs of over £17,000) after workers were regularly exposed to harmful chemicals. They suffered rashes and in some cases were unable to continue working at the site. An HSE investigation found that the company had multiple failings in their handling of hazardous substances.

A Norfolk-based foundry was fined after a machinist suffered life-changing injuries to her hand when it came into contact with a moving drill bit. Edward Flitton, trading as Hever Ironworks, was sentenced to a community order of 120 hours of unpaid work and fined £300. The HSE investigation found that there was no safe system of work in place for employees using the drilling and tapping machines, and no Employers Compulsory Liability Insurance in place at the time of the incident, which was only brought to the attention of the HSE by a third party.

A building contractor received a 26 week prison sentence suspended for two years, 180 hours community service and was ordered to pay £2,000 in costs, after workers were exposed to dangers of falls from height and silica dust. The HSE investigation found that the contractor had made a deliberate decision not to provide the correct scaffolding or means of dust capture in order to save money, and had also failed to insure his employees against any injury or ill health sustained during the course of their work.

On the subject of work at height, according to the HSE website this is the biggest single cause of fatal and serious injury in the construction industry, particularly on smaller projects. The All-Party Parliamentary Group on Working at Height recently published a report titled ‘Staying Alive: Preventing Serious Injury and Fatalities while Working at Height’, following a 12 month inquiry. It calls on the government and industry to undertake a major review of work at height culture, expand enhanced reporting and introduce reporting on near misses.

Government consults on further advertising restrictions for products high in fat, salt and sugar

The government is consulting until 10 June 2019 on reducing children’s exposure to advertising for products that are high in fat, salt and sugar (HFSS) on television and online. It says it is concerned that, despite existing restrictions, children see a significant level of HFSS adverts through the media they engage with the most and that this can shape their food preferences and choices and, over time, lead to obesity. Views are being sought on options across broadcast and online media in order to reduce children’s exposure to HFSS advertising. The government wants to ensure that any future restrictions are proportionate, targeted to the products of most concern to childhood obesity, and can be easily understood by parents.

Contains public sector information published by the Health and Safety Executive and licensed under the Open Government Licence.