Responsiveness
OCTOBER 2011
Health and Safety Group Briefing
Sentencing Trends for Health
and Safety Offences
Key Contacts
For further information,
please speak to your usual
Arthur Cox contact or one
of the following lawyers:
In 2010, the Health and Safety Authority (“HSA”) successfully
completed 27 criminal prosecutions: 10 summary and 17 on
indictment. In addition, a further 23 files were sent to the Director
of Public Prosecutions for directions. These sentences resulted in
total fines of ¤571,900. In addition, two twelve month (suspended)
custodial sentences were handed down. These figures are slightly
down on 2009 where a total of 38 prosecutions were concluded with
total fines of ¤708,850. However, overall, the level of fines is on the
increase (as is the level of (suspended) custodial sentences imposed).
Tristan Conway-Behan, Associate
+353 (0)1 618 0342
[email protected]
Niav O’Higgins, Partner
+353 (0)1 618 0314
[email protected]
This document contains a general
summary of developments and
is not a complete or definitive
statement of the law. Specific
legal advice should be obtained
where appropriate.
Sentencing
Many of the principles for the sentencing of corporate offenders have developed out of well
established principles applicable to individuals. This differs greatly from days gone by when
corporations were thought to be exempt from the criminal law. Devising a suitable penalty
was problematic, especially in olden days, when virtually every crime of any gravity carried
the death penalty. “Can you hang its common seal?” asked one advocate during the reign of
James II.
When compared with other Western countries, Ireland
retains a largely unstructured sentencing system.
Maximum sentences are prescribed by statute for most
offences, for example in the Safety, Health & Welfare at
Work Act, 2005. However, there is no guidance on the
severity of punishment appropriate for any particular
offence. In the 2003 Australian case of R v Nemer , the
court said: “There is no sentence that is exactly right in a
given case. In any particular case, the most that can usually
be said is that an appropriate sentence will be within a certain
range. Any sentence within that range will be appropriate.”
“For a punishment to
be just it should consist
of only such gradations
of intensity as suffice
to deter men from
committing crimes.” –
Cesare Beccaria (On Crimes and
Punishments, 1764)
Accordingly, one of the challenges in our sentencing system is overcoming the apparent
inconsistencies between the approaches of individual sentencing courts.
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Earlsfort Centre, Earlsfort Terrace, Dublin 2, Ireland | tel: +353 (0)1 618 0000 | fax: +353 (o)1 618 0618 | email: [email protected] | web: www.arthurcox.com
SENTENCING TRENDS FOR HEALTH AND SAFETY OFFENCES
OCTOBER 2011
Reliance on Appellate Guidance
All common law jurisdictions rely to some extent on
appellate guidance as a means of structuring sentencing
discretion. A useful summary of the relevant principles
relating to sentencing comes from the decision of the
Supreme Court in People (DPP) v RMcC where Kearns J.
stated: “…there is a ‘due process requirement in sentencing’…This
requires that any sentencing court should conduct a systematic
analysis of the facts of the case, assess the gravity of the offence,
the point on the spectrum which the particular offence or offences
may lie, the circumstances and character of the offender and the
mitigating factors to be taken into account – all with a view to
arriving at a sentence which is both fair and proportionate.”
While each case should be dealt with on its own particular
circumstances, the following mitigating factors are relevant:
»» the previous safety record of the company;
»» a prompt admission of responsibility and an early guilty plea;
»» the means of the company and the effect of the fine on it;
»» the extent of the danger created, for example was it an isolated incident or a persistent one and steps taken to remedy deficiencies after they are drawn to the defendant’s attention.
On the other hand, the court identified the following
aggravating factors:
In essence, the courts will have regard to three core principles:
»» the deliberate breach of a duty to maximise profits;
1. Gravity of the crime
A court must make a judgment on the relative gravity of
the offence, bearing in mind that maximum sentences
should be reserved for the worst cases. In practical terms,
this means that a court should begin by locating the
offence on the overall scale of available punishment and
decide on a notional sentence based on offence gravity
alone. This, however, is only the first stage of the process.
»» where death results from the breach; and
2. Proportionality
Proportionality is concerned with the premise that the
sentence to be imposed is not the appropriate sentence
for the crime, but the appropriate sentence for the crime
committed by the particular accused. The case of People
(DPP) v Oran Pre-Cast Limited established that: where
a fine is unlimited (as it was in that case), care and
restraint must be used in the power to fine; and, the fine
imposed must be proportionate to the level of fault and
the means of the offender.
3.
Aggravating and Mitigating Circumstances
These are factors which may be taken into account by a court having firstly established both the gravity of the offence and having determined a proportionate sentence relative to both that offence and the circumstances of the offender.
The leading case, in the context of health and safety
prosecutions, is the English case of R v F. Howe & Son (Engineers)
Limited, which has been adopted by the Court of Criminal
Appeal in Ireland in People (DPP) v Roseberry Construction Limited.
»» a failure to heed warnings.
The Court observed that the size of the company and its
financial strength or weakness could not affect the degree of
care that was required in matters of safety.
The extent to which mitigating factors are considered will
vary depending on the circumstances of the particular case.
For example, in a recent anti-competition prosecution, the
extensive cooperation of the defendant company with the
investigation of the Competition Authority was entered
by the defence as a plea in mitigation. This was rejected by
the judge on the basis that the defendant company only
cooperated when it knew that ‘the game was up.’
Conclusion
Judicial discretion in sentencing remains a cornerstone
of our sentencing policy in Ireland. This brings with
it certain attendant challenges such as overcoming
the apparent inconsistency of approach as between
individual sentencing courts. Judges and appeal courts
will naturally differ as to where particular offences should
be located on the scale of gravity and how much weight
should be attributed to the particular circumstances and
characteristics of the offender. However, for the moment,
judges and practitioners are loath to abandon discretionary
sentencing lest it should curtail the capacity of the courts to
fashion sentences which reflect all of the circumstances of
specific cases.
Dublin
Belfast
Earlsfort Centre, Earlsfort Terrace, Dublin 2, Ireland
tel: +353 (0)1 618 0000 | fax: +353 (o)1 618 0618
email: [email protected]
Capital House, 3 Upper Queen Street, Belfast BT1 6PU, Northern Ireland
tel: +44 (0)28 9023 0007 | fax: +44 (0)28 9023 3464
email: [email protected]
London
New York
12 Gough Square, London EC4A 3DW, England
tel: +44 (0)20 7832 0200 | fax: +44 (0)20 7832 0201
email: [email protected]
One Rockefeller Plaza, 15th Floor, New York NY 10020, USA
tel: +1 (1)212 782 3294 | fax: +1 (1)212 782 3295
email: [email protected]
www.arthurcox.com
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