Why mitigation is continually important in health and safety cases

With the introduction of the Sentencing Guideline for health and safety cases in February 2016 came a marked increase in the fines handed down by the Courts and an increase in the likelihood of convicted individuals being sent to prison for breaches of health and safety.

According to the HSE’s statistics, the increase for companies with turnover over £50m has been most significant.  In the last year before the guideline (2014-15) the largest fine imposed was £750,000 and 5 cases were at or above £500,000. By contrast in 2017-18 the largest single fine was £3,000,000 and 45 cases received fines over £500,000.

As a result, more emphasis is being placed on strategies to avoid conviction, and to ensure maximum discounts for effective mitigation.

Mitigation is evidence which, following conviction, persuades the court to reduce sentence. Good mitigation advanced early, can also persuade a prosecutor not to prosecute- not every breach leads to court.

The Sentencing Guideline provides a non-exhaustive list of the “factors reducing seriousness or reflecting mitigation” which the court will consider when sentencing and which we suggest can help your business:

No previous convictions or relevant/recent convictions.

If you have no previous relevant criminal record and have not been the subject of enforcement action that can help to reduce the penalty on a conviction. If you do have a relevant record though, the Court must take it into account as an aggravating feature. For companies, previous convictions are never “spent”. So even if a conviction is several years’ old, it can still aggravate a penalty. If you have any criminal record (convictions or enforcement notices) then keep information about the detail (we suggest 10 years). The best way of avoiding it being used against you is to have sufficient information to enable you to argue against its relevance to a current case. That information is often lost.

“Evidence of steps taken voluntarily to remedy the problem”.

It is always good mitigation if a defendant has rectified the cause of any inadequately managed risk without being compelled to do so by an improvement or prohibition notice. Easier to do before an inspector visits post incident if the cause is very clear, but if you can show you immediately controlled the risk, investigated and formulated a  plan to respond appropriately to what happened, this will help in mitigation and  may also save you from an enforcement notice.

High level of co-operation with the investigation beyond that which will always be expected”.

There is a legal obligation to cooperate with an investigation, so cooperation ordinarily doesn’t amount to mitigation. What constitutes a mitigating “high” level of co-operation is not defined in the guideline but might perhaps be indicated by: an immediate acceptance of guilt;  a concerted effort to help others learn from your lessons (through engagement for example with a relevant trade association), and perhaps volunteering to share post-accident expert evidence. That will not be the right strategy in every case, but worth bearing in mind.

Good health and safety record

This mitigating factor is often ignored. Even where there is a  previous conviction, if time is invested in demonstrating improvements made since then, or demonstrating  there has been a downward trend in reportable incidents, or initiatives taken which have been effective in reducing risk in any area of the business that will all help. Capturing this information to be ready for mitigation if needed is not the only benefit – it can also facilitate reductions to insurance premiums and achieve safety accreditations (which can themselves aid mitigation and evidence a good record) and can help with workplace morale if communicated to staff.

Effective health and safety procedures in place”.

If you have policies, procedures and risk assessments in place, even though there may have been a gap, or a procedure may have been disregarded leading to an accident, that they were in place at all at the time of an accident, will be mitigation. Be aware of your obligation to assess and mitigate risk and review assessments regularly or when circumstances change. Importantly effective communication of the controls might also avoid you ever needing mitigation.

“Self-reporting, co-operation and acceptance of responsibility”.

This is relied on where a “high level of co-operation” cannot be claimed. Since some incidents must be reported under RIDDOR by law, it is not usually possible to gain credit for reporting. Some incidents though do fall into a grey area and where that happens and the incident is still reported, this can be a mitigating factor. Co-operation with the HSE investigation is also a legal requirement though compliance will normally be acknowledged by the prosecution where the duty holder has been open to the investigation and engaged positively with it.

Early Plea

Although not technically mitigation, it is worth remembering that the single biggest reduction in fine is usually achieved through an early guilty plea. Under the ‘Reduction in Sentence for a Guilty Plea Definitive Guideline’ effective from 1st June 2017, where a guilty plea is indicated at the first hearing a reduction in sentence of one third should be given. The reduction diminishes on a sliding scale to one quarter when guilt is indicated at a later stage, down to a maximum of one tenth if a guilty plea is given on the first day of trial. Although the Guideline rather optimistically states, “Nothing in the Guideline should be used to put pressure on a defendant to plead guilty,” because fines in health and safety cases particularly for large businesses now regularly exceed £1m inevitably the discount in reality does end up having some commercial influence on decisions on plea.

When is mitigation needed?

Technically, mitigation is needed only on a conviction.

Hopefully  you are never in that position.

However, being mindful of mitigation can ensure it is maximised for your benefit when needed.

It can also:

  • help to improve your health and safety strategy by ensuring information is gathered, controls are reviewed and communicated, and engendering pride among staff in a strong health and safety record and culture
  • provide evidence to reduce insurance premiums
  • avoid the occasions when mitigation might actually be needed

If you are the subject of a criminal investigation for health and safety or environmental breaches Finch Legal is here to help. Our lawyers specialise exclusively in defending health, safety and environmental offences and are skilled at dealing with the regulators and providing the advice and support required both during investigation and after the issue of proceedings. They are also uniquely placed within Finch to benefit from early expert input from our engineers, behaviour experts and former HSE inspectors. Even if insured for your defence costs, your Insurers are legally obliged to pay for your preferred legal advisor under legal expense coverage in criminal matters. Please do not hesitate to contact Sue Dearden or Julia Thomas for an informal chat at any time for whatever support may be needed in dealing with a regulatory investigation or prosecution.

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