“Volaw Trust” - A strengthening of the privilege against self incrimination from requests for pre-existing documents?
It is fair to say that following the introduction of the sentencing guidelines in February 2016 there has not been much ‘good news’ for those who fall to be sentenced for health and safety offences. One year on and the guidelines have led not only to an overall increase in fines, but also, as my colleague Jonathan Grimes recently identified, to a wider range of possible sentencing outcomes reached by different judges in cases involving very similar facts. Robust enforcement from the Health and Safety Executive (HSE) continues, and in the opinion of my colleague Irene McMillan, can be expected to increase in future; in particular for those involved in the running and operation of very large companies.
However, it is not all doom and gloom. On 1 June 2017, the Sentencing Council will bring into effect sentencing guidelines for use in courts in England and Wales, setting out the principles which should be applied to reduce a sentence in the event of a guilty plea.
Helpfully, it seems that the Sentencing Council have taken on board the concerns expressed by the Health and Safety Lawyers’ Association (HSLA) to the first draft of the guidelines. In particular, the HSLA expressed concerns that health and safety cases require greater flexibility when it comes to a reduction for guilty pleas than the consultation proposal originally envisaged. The reasons for this are twofold. Firstly, although the prosecutor may provide disclosure, setting out the alleged breach of duty, in advance of the first hearing, the defendant will often need to obtain expert evidence and legal advice before realistically being able to enter a plea to any charge. This can be incredibly time consuming, particularly with a number of offences under the Health and Safety at Work Act 1974, which allow a defendant a reverse burden to assert that they did all that was reasonably practicable in the circumstances. Secondly, the introduction of the sentencing guidelines for health and safety cases in February 2016 has meant that there are a number of additional areas that require discreet consideration by defendants and their lawyers before any plea can be properly entered. These can include culpability, risk of harm, harm and bracket of fine. All of those considerations can be, and usually are, the subject of discussion with the HSE, with a view to the parties trying to arrive at an agreed position. These discussions can be complex, requiring expert evidence and legal advice, and, again, they take time; particularly when the defendant is a corporate defendant rather than an individual.
The sentencing guidelines applicable to a reduction in sentence for a guilty plea now provide that:
Plea indicated at the first stage of the proceeding
Where a guilty plea is indicated at the first stage of proceedings a reduction of one-third should be made (subject to the exceptions in section F). The first stage will normally be the first hearing at which a plea or indication of plea is sought and recorded by the court.
The exception that we envisage will be of most use to defendants prosecuted for corporate manslaughter or health and safety offences is the following, which provides:
Further information, assistance or advice necessary before indicating plea
Where the sentencing 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 than was done, a reduction of one-third should still be made. In considering whether this 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(s) charged, and cases in which a defendant merely delays guilty plea(s) in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal.
Importantly, the Sentencing Council has acknowledged that this exception has been reworded to allow for sufficient information to be disclosed for a defendant, including a corporate defendant, to know what is alleged before requiring a plea.
In the current climate, it is understandable that directors and senior managers may feel somewhat daunted by the prospect of HSE enforcement action on their operations. However, defendants should take some comfort from the fact that the Sentencing Council has reworked these guidelines to ensure that the considerations relevant to health and safety cases and corporate defendants are accommodated. Additionally, where they are advised it is appropriate to do so, entering a guilty plea at the right time may ensure that they achieve a one-third reduction to their sentence. By taking trustworthy legal advice at the earliest opportunity, there is a lot that can be done to ensure the best sentencing outcome is achieved.
If you are a corporate or an individual who requires legal assistance we have a team of Corporate Manslaughter and Health and Safety specialists at Kingsley Napley who would be happy to help; please contact Jonathan Grimes, Irene McMillan or Melinka Berridge for further information.
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