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Driving safety: the risks for operators

  • United Kingdom
  • Diversified industrials
  • Transport - Road

29-01-2016

The Definitive Guideline for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences (the “Guideline”) comes into force on 1 February 2016.  Any relevant offences sentenced after this date will be subject to the increased sanctions proposed under the Guideline. 

This approach to sentencing, and the punishments provided, represents a significant change in the field of health and safety and both organisations and individuals need to be aware of the potential impact.  This article considers the ramifications for transport operators. 

Fines for Health and Safety Offences for Organisations

The Guideline is based on the concept that ‘culpability’ and ‘harm’ are used to determine the level of fine, cross-referenced against the size of the Defendant organisation.

The measure of ‘culpability’ varies from ‘low’, where failings are minor and not systemic, to ‘very high’, where there has been a deliberate breach or flagrant disregard for the law.  In transport operations, the regulators will be keen to determine whether a failure is consistent across the whole organisation; a good example being poor drivers’ hours management or regular overloading.  Regulators will want to know if management have ‘turned a blind eye’ to unacceptable MOT pass rates or a failing Operator Compliance Risk Score (“OCRS”).  Well managed organisations that have had one ‘blip’ across a normally competent operation will have less to fear.

The level of ‘harm’ is based upon the risk of harm created by the offence, which is then exacerbated if actual harm has occurred.  The risk of harm is evident in transport operations.  If something goes wrong, it tends to go very wrong, and therefore the harm (actual or potential) is likely to be high.

Once the ‘culpability’ and ‘harm’ categories are established, the turnover of the organisation will be used to allocate a particular sentencing matrix.  There are different matrices depending on the size of the organisation:

  • Micro - turnover not more than £2 million
  • Small - turnover between £2 and £10 million
  • Medium - turnover between £10 and £50 million
  • Large - turnover over £50 million

Each of the four matrices provides indications as to starting points for a fine, and a range within which the fine can be placed.  Provision is also made for ‘very large’ organisations, with the Guideline stating that it may be necessary to move outside of the stated ranges.  Unfortunately, no further guidance is given on how those calculations should be conducted.

Once the matrix has been used to determine the fine range, it will then be for the Court to engage in the normal sentencing exercise and follow the below process:

  • Consider any mitigating and aggravating features of the case, as listed in the Guideline
  • Ensure that the fine is proportionate to the means of the offender
  • Consider other factors that may warrant adjustment of that fine, such as the impact of any fine on the local economy
  • Apply a reduction for a guilty plea (where appropriate)

Whilst the figures used within the Guideline provide some clarity to the sentencing process, the above stages still maintain a level of unpredictability about the fine to be imposed.  There will be cases with similar fact patterns that may still differ in the level of fine, perhaps due to the mitigating and/or aggravating features that are applicable.

Fines for Health and Safety Offences for Individuals

The exercise to determine ‘culpability’ and ‘harm’ remains very similar to that used for organisations.  However, the determining factors relevant to ‘culpability’ are of interest.

An individual can still be ‘culpable’ at a ‘low’ level even when an offence has been committed with little fault, for example where failings are minor and occurred as an isolated incident.  The criteria for ‘medium’ culpability provides that the offence was “committed through act or omission which a person exercising reasonable care would not commit.”

It will be of interest to individuals, such as Transport Managers, as to what a Transport Manager exercising reasonable care would do.  How will this vary depending on the size and sophistication of each Operator?

The ‘high’ culpability rating is reserved for those who carry on business in the knowledge of risks, from poor OCRS or an awareness of other failings.  ‘High’ culpability requires: “Actual foresight of, or wilful blindness to, risk of offending but risk nevertheless taken.”

The key ‘take home’ message is the increasing possibility of custodial sentences. Even for those offences involving low culpability, there is still the possibility of a 26 week prison sentence in cases involving the highest level of harm.

Fines for Corporate Manslaughter

The Guideline is much clearer for corporate manslaughter sentencing.  There is no need to determine the level of ‘harm’ as all prosecutions will follow a fatality.  ‘Culpability’ levels are also reduced into two categories: ‘serious’ and ‘more serious’.

The proposed fines are significant and much larger than the majority of those imposed for corporate manslaughter offences since April 2008. 

The sentencing exercise then mirrors that to be followed for health and safety offences, above.

What can we learn?

For those involved in transport operations there is a lot that can be learned from the Guideline. 

  1. The importance of an Operator’s turnover

    Under the Guideline, the financial size of an organisation determines the range of fines to be imposed.  In the case of organisations which are medium (between £10million and £50million turnover) or large (over £50 million turnover), the starting point for fine levels have increased considerably.  There is no bracket identified for vary large organisations, albeit the organisation’s turnover or equivalent will very greatly exceed £50million.  It will therefore be for the Courts to determine what a very large organisation is and how to treat them.

    Mitigation can still be presented and there will be consideration of an organisation’s broader financial position, such as its profitability.  However, such figures represent a significant departure from fines imposed historically.

    Operators should also remember the requirement of financial standing imposed by the Traffic Commissioner.  It will be difficult for an Operator to argue financial hardship to the sentencing Court whilst also maintaining a position of good financial standing to the Traffic Commissioner.
  2. Senior Management knowledge

    An aggravating element of any health and safety offence will be if the identified failings can be traced to senior management, at its most serious this would be through complicity.  However, senior manager failing can also arise through oversight in a busy organisation. 

    Ignorance of the law is often cited as being no defence.  Directors of companies that hold Operator Licences are required to commit to strict undertakings and the Traffic Commissioner wants to see board input and oversight of transport operations.  Senior management cannot therefore legitimately deny awareness of the ongoing transport operation.  The introduction of the Guideline is a good time to ensure that you are fully aware of your obligations. 
  3. Transport managers at risk

    The role of the Transport Manager is all encompassing: “responsible for the continuous and effective control of the management of the transport operations of the business”[1].  It is very easy to see how the Transport Manager could satisfy the ‘culpability’ requirements of the Guideline. 

    Transport Managers need to think carefully about what it expected of them.  Are they suitably resourced and supported to fulfil the role given to them? 

  4. The relevant of mitigating and aggravating features

    Mitigating (those that make the offence less serious) and aggravating (those that make the offence more serious) features have been a relevant part of health and safety sentencing for many years.  However, the impact of the Guideline is that mitigating features that reduce the fine could reduce the fine by hundreds of thousands of pounds, given the increase in fine levels.  Equally, aggravating features will significantly inflate fines.

    Those most relevant for Operators in health and safety cases:

    i) Cost-cutting at the expense of safety

    There will be many occasions where an Operator has to balance cost against other factors within their operation.  Operators should treat this balance with the utmost respect.  There will be cases when significant financial expenditure cannot be justified.  However, organisations need to be very careful when making decisions on investment (such as driver training, vehicle tracking, etc) that they do not evidence an attitude of putting profit before safety.

    ii) Deliberate failure to obtain or comply with the relevant licences in order to avoid scrutiny by authorities

    This aggravating feature has clear links to the Operator Licensing regime.  Operators need to ensure that their Licences are current, accurate and properly updated.  Any attempts to subvert the Licensing system will be treated harshly.

    iii) No previous convictions

    An Operator with a good record on safety, including road safety, should expect a lower fine than an organisation with a chequered past in relation to compliance.  Visits by the DVSA and Public Inquiries before the Traffic Commissioner will be relevant factors in this regard.

    iv) Evidence of steps taken to remedy the problem

    Whenever a safety issue is highlighted, an Operator should use it as an opportunity to review current practises and consider whether they can be improved.  Changing procedures following an incident does not necessarily imply guilty and may actually represent a significant mitigating feature during the sentencing exercise.

    v) High level of co-operation with the investigation, beyond that which will always be expected

    It remains to be seen as to what level of co-operation goes ‘beyond that which will always be expected’.  However, Operators should have in place plans to ensure that regulators are appropriately dealt with, and that the organisation can show a co-operative and helpful attitude to any investigation.

Concluding comments

The Guideline will have a significant impact across all health and safety sentencing from February 2016.  The link between Operator Licensing and health and safety is evident; and we expect that some of those involved in transport operations will need to have reference to the Guideline in the near future.  It is important that the messages encompassed within the document are spread across an organisation so that everyone knows what they are up against.


[1] GV79G: Guidance notes to help you complete your application for a Goods Vehicle Operator’s Licence https://www.gov.uk/

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