The new world of sentencing - Quest NBS€¦ · New sentencing guidelines: what do you need to know? 23 • Specifically talks about safety cases as an example of where the offence

1Private & Confidential. Not for distribution.

© DWF LLP 2017

The new world of sentencing

Dominic Watkins

[email protected]


© DWF LLP 2017

HSE Safety Trends

Private & Confidential. Not for distribution.

© DWF LLP 2017


© DWF LLP 2017 4


© DWF LLP 2017 5


© DWF LLP 2017

The impact of the sentencing guidelines

• Mean fine: £126,000 per offence –doubled last year

• 593 cases prosecuted by HSE, how many resulted in a conviction?

6

93%!

A conviction was secured (for at least one offence) in 554 of the 593 cases


© DWF LLP 2017

How does sentencing work?


© DWF LLP 2017

What do you need to know?

8

• A quick reminder – the guidelines apply to safety, food and corporate manslaughter

• What is the new normal?

• Compliance (or increased compliance) has never been more important


© DWF LLP 2017

9 Stages to sentencing.

9

Step 1: Culpability


© DWF LLP 2017

And harm levels determined

10

If the offence:

• exposed a number of workers or members of the public to the risk of harm. The greater the number of people, the greater the risk of harm, or

• was a significant cause of actual harm.

Then the Court must consider moving up a harm category or further up in the category range.


© DWF LLP 2017

Aggravating and mitigating features

11


© DWF LLP 2017

Step 2: the starting point and range

12

Culpability level changes:

£1m jump in fines!


© DWF LLP 2017

How is this assessed?

13

Jumps between harm

category – at least

100% increase.

Greatest % increases

at lower culpability

levels

Jumps between harm


100% increase.



levels

3-3.5 x increases

2x increases


© DWF LLP 2017 14

Jumps between harm


100% increase.



levels

3-3.5 x increases

2x increases


© DWF LLP 2017

The most recent guidance for very large businesses…

15

Having determined that an organisation is very

large, the calculation of a fine through the

structure of the Guideline does not at this stage

dictate an arithmetic approach to turnover. There

is no linear approach. That much is clear from the

conclusion endorsed by this court in the Tata Steel

case where a turnover of £4 billion, as opposed to

£50 million, led to a step change of one harm

category rather than extravagant multiples

the fact of death as something that substantially

increases a sentence, as required by the second

stage of the assessment of harm at Step One.

Without more, we consider that the fact of death

would justify a move not only into the next

category but to the top of the next category

range...

R v WHIRLPOOL UK APPLIANCES LIMITED


© DWF LLP 2017

Steps 3-9

16


© DWF LLP 2017

0

1

2

3

4

5

6A

ldi S

tore

s

Ba

kkavo

r F

oo

ds L

imite

d

Ba

lfo

ur

Bea

tty

BF

K J

oin

t V

entu

re:…

Cri

sta

l P

igm

en

t (2

bre

ach

es)

Decco

DF

S T

rad

ing

Lim

ite

d

Em

bra

ce

All

Essa

r O

il U

K L

imite

d

Explo

re M

an

ufa

ctu

rin

g

Fo

od

les P

rod

uctio

n U

K

G4

S

Gre

enco

re G

rocery

Lim

ite

d

How

den

Join

ery

Lim

ite

d

Ice

lan

d

Indu

str

ial C

he

mic

als

Lim

ite

d

JT

F W

hole

sa

le L

imite

d

Kie

r In

teg

rate

d S

erv

ice

s L

td

Kie

r M

G

Lon

do

n &

So

uth

Ea

ste

rn…

Ma

ria

Ma

llaba

nd C

are

Gro

up

Ma

rtin

isation

(L

on

don

) L

imite

d

Me

rlin

Att

ractio

ns

Ne

twork

Ra

il

Nott

ing

ha

msh

ire

Co

un

ty…

Pa

rke

r H

ann

ifin

Ma

nufa

ctu

ring

Po

rvi C

onstr

uccio

ne

s y

…

Se

lect P

lant

Hir

e

Se

mb

co

rp U

tilit

ies (

UK

)

Sh

eff

ield

Forg

em

aste

rs…

So

uth

West

Wa

ter

Ta

rma

c

Ta

ta S

teel

Te

sco S

tore

s L

imite

d

Tra

vis

Pe

rkin

s

Unite

d L

inco

lnsh

ire

…

Wa

rbu

rton

s

Wa

rbu

ton

s

Wa

tlin

g T

yre

s

We

tto

n C

lea

nin

g S

erv

ices…

Wilk

o

£m fines under the guidelines

The new normal…

17

Greencore: £1m

Bakkavor: £2m

Warburtons £2m

Warburtons £1.9m

Wilko: £2.2m

Iceland £2.6m

Aldi £1m

DFS: £1m


© DWF LLP 2017

What does this tell us?

18

32 £1m+ fines1975- Jan 2016

41 £1m+ finesJan 16- date

£1.81mMean fine

50:50 splitfatal vs non-fatal


© DWF LLP 2017

Guideline also applies to individuals…

19

189 Custodial or Suspended sentences

1975- Jan 2016

30 Custodial or Suspended sentences

Jan – Oct 2016


© DWF LLP 2017

So what for food?

20


© DWF LLP 2017

Never been a better time to invest in compliance

21


© DWF LLP 2017

Manslaughter sentencing guidelines


© DWF LLP 2017

New sentencing guidelines: what do you need to know?

23

• Specifically talks about safety cases as an example of where the offence occurs

• Significant increase proposed in sentence – 2014: 16 convictions, median sentence 4 years

• Similar to safety in approach focus on culpability and recognition that harm level is inevitably of the utmost seriousness.

• Consultation closed in October, so outcome expected soon.


© DWF LLP 2017

What do they need to show?

24

The prosecution has to prove the following elements.

1. In accordance with the ordinary principles of negligence, the defendant owed the deceased a duty of care.

2. The defendant was in breach of that duty of care.

3. A reasonably prudent person would have foreseen that the defendant's actions or omissions constituting the breach of duty had exposed the deceased to an "obvious and serious" risk of death. The relevant risk to be reasonably foreseen is nothing less than the risk of death.

4. The breach of duty either caused, or made a significant contribution (i.e. a contribution that was more than negligible) to, the deceased's death.

5. The departure of the defendant's conduct from the proper standard of care incumbent upon him, involving as it must have done the risk of death, was such that the breach of duty can properly be characterised as gross negligence and therefore criminal


© DWF LLP 2017 25


© DWF LLP 2017

So that means:

26


© DWF LLP 2017

Cases are prosecuted

27


© DWF LLP 2017

Early Guilty Pleas


© DWF LLP 2017

What do you need to know?

29

• New rules – days of liberal application of 1/3 reduction are, at best, numbered

• First appearance = 1/3

• Listed for trial = ¼

• Reducing to 1/10 on day of trial

• These are maximums. It could be a whole lot worse…

• Strategic approach has to be adjusted


© DWF LLP 2017

The process…

30

33%: £597,000First hearing

25%: £452,500After first hearing

10%: £181,000Trial


© DWF LLP 2017

Contact me

Dominic Watkins

Partner, DWF

[email protected]

Linkedin: https://www.linkedin.com/in/dominic-watkins-08510022/

31

mailto:[email protected]

https://www.linkedin.com/in/dominic-watkins-08510022/

© DWF LLP 2017. DWF LLP is a limited liability

partnership registered in England and Wales (registered

number OC328794). DWF LLP is authorised and

regulated by the Solicitors Regulation Authority. DWF LLP

is also recognised as an incorporated practice with the

Law Society of Scotland (registered number 43186). The

term Partner is used to refer to a Member of DWF LLP or

an employee or consultant with equivalent standing and

qualification. A list of the Members of DWF LLP and of the

Non-Members who are designated as Partners is open to

inspection at its registered office, 1 Scott Place, 2

Hardman Street, Manchester M3 3AA. Copyright in this

document belongs to DWF LLP which asserts the right to

be identified as such and hereby objects to any misuse

thereof. This information is intended as a general

discussion surrounding the topics covered and is for

guidance purposes only. It does not constitute legal advice

and should not be regarded as a substitute for taking legal

advice. DWF is not responsible for any activity undertaken

based on this information and makes no representations

or warranties of any kind, express or implied, about the

completeness, accuracy, reliability or suitability of the

information contained herein. 290316

dwf.law

DWF is a global legal business, connecting expert

services with innovative thinkers across diverse

sectors. Like us, our clients recognise that the world is

changing fast and the old rules no longer apply.

That’s why we’re always finding agile ways to tackle

new challenges together. But we don’t simply claim to

be different. We prove it through every detail of our

work, across every level. We go beyond conventions

and expectations.

Join us on the journey.

Beyond borders, sectors and expectations

Documents

The new world of sentencing - Quest NBS€¦ · New sentencing guidelines: what do you need to know? 23 • Specifically talks about safety cases as an example of where the offence