The Scottish Sentencing Guidelines have been in force for just over two months, applying to all criminal sentences in Scotland. As the Scottish Sentencing Council ("SSC") recently laid its Annual Report for the year 2020-21 before the Scottish Parliament, now seems like the ideal time to reflect on the changes effected by the new guidelines, how these affect Health & Safety prosecutions, and what the future might hold.
The process so far
Prior to the introduction of the guidelines, sentencing in Scotland developed in accordance with common practice, previous case law, and the experience of the sentence giver. This contrasted with the situation in England & Wales, where sentencing guidelines have been in place for a number of years and are set by the Sentencing Council.
The SSC was set up in 2015 as an independent advisory body and tasked with the creation of sentencing guidelines for courts in Scotland. Its aims are to:
- Promote consistency in sentencing;
- Assist the development of sentencing policy; and
- Promote greater awareness and understanding of sentencing.
Where are we now?
As discussed previously, draft guidelines were published by the SSC in June 2021. These were then approved by the Scottish High Court and entered into force on 22 September 2021. These will be considered in conjunction with the guidelines for England & Wales. In making sentencing decisions, Scottish courts must now assess the seriousness of the offence, select the sentencing range, identify aggravating and mitigating factors, and then determine the headline sentence. Consideration must then be given to other factors, such as the entering of a guilty plea, before imposing the sentence and providing reasons for doing so.
So, without a specific set of Scottish Health & Safety sentencing guidelines, where does this leave decisions in relation to those offences? The English & Welsh Definitive Guidelines on Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences ("the Definitive Guidelines") have been used in Scotland as a cross check since 2016, when the Scottish Appeal Court held that there was no reason to depart from this approach, which had become common practice in the Scottish Courts.
Under the English & Welsh guidelines, judges handing down Health & Safety sentences will have regard to the offence category, with reference to culpability and harm factors, and the starting point and range of fine based on the accused organisation's annual turnover. Judges should then consider aggravating and mitigating factors, before stepping back and considering whether the fine arrived at fulfils sentencing objectives – put simply, the fine must be high enough to make management and shareholders appreciate the need to comply with Health & Safety legislation and that failure to do so has serious consequences. Other factors can also be taken into account, such as a guilty plea having been entered.
The new Scottish Sentencing Guidelines, in conjunction with the Definitive Guidelines, should create a more consistent and predictable approach to Health & Safety sentences across Scotland. A specific set of Scottish Health & Safety sentencing guidelines may yet be developed, but these do not currently feature on the SSC's guidelines in development.
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