In November 2014, the Sentencing Council for England & Wales published its proposed draft guidelines for health and safety offences and commenced a public consultation. The consultation closed in February and the Justice Committee has published its report on the consultation. The major change proposed by the draft guidelines is the move to a tariff based system whereby the level of fine is based on the turnover of the company, resulting in significantly higher fines for large companies (potentially £millions).

As expected, the Justice Committee’s report has endorsed this approach noting that the “overall sentencing process in the proposed guideline gives sentencers the flexibility they need to ensure the interests of justice are served”. Although this will require the Courts to consider extensive financial information before sentencing which may cause some delay, this is acceptable as “ultimately there is a need to ensure fines are proportionate, consistent and appropriately punitive”.

Whilst the Definitive Guidance will be only be binding on Courts in England & Wales, Courts in Scotland are likely take notice of the approach until separate Scottish Guidelines are available. The previous version (Guidelines on Corporate Manslaughter & Health and Safety Offences Causing Death) is already regularly referred to in the Scottish Courts.

A new Scottish Sentencing Council will be established by October this year and it remains to be seen how they will approach the issue. There will be a strong argument in favour of consistency both sides of the border. If past performance is an indicator we should not expect the Scottish guidelines to be less punitive.

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