Another wake-up call for individuals and organisations to create and manage safe working environments as tougher sentences are announced, says Tim Ridyard
The Health and Safety Executive has published work-related fatal accident figures for April 2016 to March 2017. There were 137 fatalities in that period though this is the second lowest year on record and a 50% reduction over 20 years. The self-employed fatal injury rate is more than double that of employees.
Of interest are the main types of incident that led to the deaths and the sector within which they took place:
• Struck by moving vehicle: 31 deaths
• Falls from height: 24 deaths
• Struck by moving object: 20 deaths
• Trapped by something collapsing/overturning: 10 deaths
• Contact with moving machinery: 8 deaths
• Contact with electricity: 8 deaths
In the statistics certain prominent sectors feature:
• Construction sector: 30 fatalities (the lowest recorded; 5-year
record is ca. 4 times that of all sectors combined)
• Waste and recycling: 14 fatalities (this sector is small but over
five years the fatal injury rate is 15 times as high as all
• Transport and storage: 14 fatalities
• Agricultural sector: 27 fatalities (the highest fatal injury rate for
all main sectors and 18 times the all sector rate)
The general trend to 2016/17 (137 deaths) is downwards with a recent levelling off:
• 171 workers died in 2011/12
• 150 workers died in 2012/13
• 136 workers died in 2013/14
• 142 workers died in 2014/15
• 147 workers died in 2015/16
Because a fatality occurs it does not automatically follow that any offence has been committed. However, the penalties imposed on businesses and individuals for breaches of health and safety laws leading to fatalities have increased significantly since changes in sentencing guidelines introduced in February 2016 – there has been a massive rise in the fines imposed in excess of £1M.
The Sentencing Council has now announced (4 July 2017) that it is consulting on the sentencing of manslaughter offences, with a view to increasing custodial sentences. There are no existing guidelines for most types of manslaughter.
What is manslaughter?
In criminal law there two types: involuntary and voluntary manslaughter. Within the voluntary manslaughter category is manslaughter by gross negligence where, for example, own employees of third parties have lost their lives through serious negligence. Safety failings – an example of this was the prosecution in the ‘Bath tipper case’. It is proved by the Prosecution demonstrating all of the following:
• there has been a breach of the duty of care to the victim
• the breach caused the death
• the offender’s conduct was so bad that it amounts to a
criminal act or omission.
The Sentencing Council has concluded that increased sentences are appropriate for some situations e.g. where an employer is engaged in prolonged disregard for employees’ safety and/ or there is a profit motive via cost-cutting. The proposed guideline divides the culpability of any Defendant into one of four categories (A,B,C or D); it suggests a starting point and then a range of penalties upwards or downwards depending on the facts of the case. Prison sentences imposed for gross negligence manslaughter currently tend to sit within the ‘C’ category with a starting point of 4 years custody from which the sentencing Judge will be able to go up to 7 years or down to 3 years. Under the new scheme the starting point for Category A (most serious) would be 12 years custody (with a 10-18 years range) whilst at the least serious starting point would be two years custody (1-4 years custody range).
Where there is a Guideline relating to sentencing defendants in a criminal case this must be followed by the Court unless it is satisfied it would be contrary to the interests of justice to do so. There are already guidelines for health and safety offences. The Court must assess the degree of culpability and categorise it. It must also assess harm - in manslaughter cases the offence will always be regarded as one with high level harm, of course, given that one or more death has occurred.
The consultation closes on 10 October 2017 and the draft Guideline will no doubt be adopted in its entirety. One can then anticipate lengthier custodial sentences. This is yet another wake-up call to individuals and businesses that they must create and manage safe environments and carry out their work with due diligence.