The Guideline Lottery

During the past year we have observed ongoing friction in relation to the application of the Sentencing Guidelines for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences in safety related prosecutions where the Sentencing Guidelines do not strictly apply.

Where there is no definitive Sentencing Guideline for an offence, to arrive at a provisional sentence, one of the factors the Court should take into account is any definitive Sentencing Guidelines for analogous offences. The areas where there is a lacuna in the applicability of a specific Sentencing Guideline include CQC prosecutions, street works prosecutions and fire safety prosecutions. We summarise below the recent developments in these areas.

CQC prosecutions

The fine of £500,000 imposed on Derbyshire County Council in December 2019 brought into focus the issue of whether or not the Sentencing Guidelines are being consistently applied in safety related prosecutions brought by the CQC under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Further, it raises the issue as to whether the Courts are finding ways to arrive at similar fine outcomes by a different route.

The Prosecution arose out of the death of a service user following a fall at a care home operated by the Council. The home did not have an up to date falls policy and no assessment of needs had been carried out.

The revenue of the Council combined with the above factors suggest that if the Sentencing Guidelines had been strictly applied, the organisation would have been categorised as a very large organisation and the starting point for the fine would be above £1 million. However the Court would have been cognisant that where the fine is being imposed on a public body, the fine should normally be substantially reduced if it can be demonstrated that it would have a significant impact on the provision of its services.

In the earlier CQC prosecution of Sussex Partnership NHS trust following the death of Jamie Osborne on the Healthcare Unit at HMP Lewes, the Trust admitted to failing to provide safe care and treatment and at the sentencing hearing in June 2020 was fined £200,000. In that case the Court applied the Sentencing Guidelines but made substantial discount to the proposed guideline fine to reflect the impact on the provision of services.

The Courts have been less willing to apply the Sentencing Guidelines to cases involving non-registration under the Health...