Lawyers must fix the problems with gagging orders before it is too late
It is now just over a year since the new guidelines for the sentencing of health and safety cases came into force. Whilst anecdotal evidence has indicated for some time that the result of the new guidelines has been an overall increase in the level of fines, a recent BBC article that reports research conducted by BLM Solicitors has put some detail on this. This research concludes that:
Whilst those may be the headlines, for those representing the largest companies (which the guidelines define as any company with a turnover that “very greatly exceeds” the £50 million threshold for “Large” organisations) the real difficulty lies in the vast range of possible sentencing outcomes that can be reached by different judges in cases involving very similar facts.
One reason for this is that for a very large company, the guidelines offer the sentencing judge a number of opportunities to adjust the sentence up or down in the course of the sentencing exercise. These include at step two of the prescribed sentencing exercise, where the guidelines explain that for very large companies, “it may be necessary to move outside the suggested range to achieve a proportionate sentence”, and step three, in which the sentencing judge is required to review the initial fine, “to ensure that it fulfils the objectives of sentencing for these offences” and that, “the court may adjust the fine upwards or downwards, including outside the range.” Factors under consideration in this stage include profitability as well as the somewhat ambiguous requirement to ensure that the fine is, “sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation.”
It is also worth noting that despite the increases reported, there remains plenty of room within the guidelines to justify the imposition of still higher fines in the future. Those sentences appealed so far have confirmed that, as expected, the Court of Appeal will approve fines at almost any level – as long as the sentencing judge has followed the steps set out in the guidelines. Fines will probably therefore continue to increase as courts become more comfortable with the idea of imposing higher financial penalties.
All this makes predicting the level of a fine for a very large company more art than science. All companies and those that advise them can continue to do is to scrutinise the facts of each case at the earliest opportunity, to consider carefully whether there is any prospect of successfully defending the case, and, assuming that there is not, to put maximum effort into negotiating a plea on the most favourable factual basis and preparing the best possible mitigation.
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