IOSH Highlands and Islands Legal Update Natalie Walker
IOSH Highlands and Islands Legal Update Natalie Walker Senior Associate Pinsent Masons LLP Topics to Cover Today Recent Developments in Sentencing Guidelines and Trends in Sentencing in Scotland. Update on Fire and Building Safety in Scotland.
Recent Developments in Sentencing Guidelines and Trends in Sentencing in Scotland English and Welsh Health and Safety Sentencing Guideline Came into force in England and Wales on 1 February 2016.
Applies to health and safety, corporate manslaughter and food safety and hygiene offences. Applies to individuals over 18 and organisations. Sentencing Guideline must be followed unless it is contrary to the interests of justice to do so. English and Welsh Sentencing Guidelines in General Sentencing Council: independent body that is responsible for developing guidelines in England and Wales.
November 2018: guidelines published in digital format. Further applicable Sentencing Guideline: Reduction in sentence for a guilty plea- in force since 1 June 2017. Sentencing Council Guidelines on Gross Negligence Manslaughter The Sentencing Council has released a definitive sentencing guideline for manslaughter offences which came into force on 1 November 2018. Gross negligence manslaughter occurs when the
offender is in breach of a duty of care towards a victim of a fatal incident, amounting to a criminal act or omission. The aim is to bring gross negligence manslaughter in line with other manslaughter offences. Overall, it is expected that the guideline will lead to increased sentences for gross negligence manslaughter. Sentencing Council Guidelines on Gross Negligence Manslaughter Sentence range 1 18 years custody Aggravating factors:
Ignoring previous warnings Actions after the event (attempts to conceal evidence) Hindering the investigation Falsely blaming others Mitigating factors:
No previous convictions Remorse Attempts to help the victim Self-reporting and co-operation with the investigation Consultation on Expanded Explanations 28 February: Sentencing Council launched a consultation on plans to provide expanded explanations in offence specific guidelines.
Consultation ran until 23 May 2019. Designed to reflect and encourage current best practice rather than to alter sentencing practice. Aim: require judges and magistrates to consider additional contextual information when weighing up aggravating and mitigating factors. Will provide judges, magistrates and other court users with useful information relating to commonly used factors. Consultation on Expanded Explanations continued
Improve transparency for victims, defendants and the wider public. Some explanations will provide links to or extracts of overarching principles. Impact: aim is not to increase sentences. Where courts are not already having regard to explanation may lead to increased sentence- court specifically drawn to aggravating factor. Relevant Proposals Cost-cutting at the expense of safety High level of co-operation with regulators beyond that
which would normally be expected. Fines: remove any economic benefit. Custodial sentences- criteria for suspending a sentence Sentencing Guidelines - Scotland English and Welsh Sentencing Guidelines not directly applicable in Scotland. ScottishPower Generation Ltd v HMA - Court of Criminal Appeal considered the application of the Guidelines in Scotland: there is no need to use [the Guidelines] in a mechanistic or formulaic fashion
guidelines from the Sentencing Council will often provide a useful cross check, especially where the offences are regulated by a UK statute Sentencing Guidelines Scotland continued Court in Scotland should make its own assessment of appropriate sentence and only use Guidelines as crosscheck if thought appropriate. Court of Criminal Appeal explicitly directed Scottish Courts to consider existing Scottish precedent, i.e. case law. Contrasting approach with English/Welsh Courts
where comparison with other cases discouraged. Scottish Sentencing Council Concept of Sentencing Guidelines new to Scotland. Sentencing Council set up in October 2015 as an independent, advisory body. Council has 12 members. Set up to address perceived inconsistencies in sentencing in Scotland. Responsibilities: preparing sentencing guidelines, publishing guideline judgments and information on sentencing, conducting research and providing general advice on sentencing.
One guideline passed: principles and purposes of sentencing. Two further general guidelines proposed: sentencing process and sentencing of young people. Preparatory work is also being undertaken in relation to offence specific guidelines relating to causing death by driving and wildlife and environmental crime. Principles and Purposes of Sentencing Guidelines First Sentencing Guideline passed by Sentencing Council. Effective from 26 November 2018. Aims of the guidelines:
Form a principled basis for future specific guidelines. Designed to assist judges and help public understand how sentences are decided. Overarching principles of fairness and proportionality. List of supporting principles which support the overarching principles. Four sentencing purposes in guidelines. Courts should also consider cost effectiveness of a particular sentence. Recent Scottish Health and Safety Case Law
Feeling that guidelines are being followed in Scotland resulting in fines increasing Two cases in Aberdeen Sheriff Court: Balfour Beatty - 600,000 fine- February 2019 Marathon Oil - 1.1 million fine- May 2019 Lerwick Sheriff Court: BP- 400,000 fine- September 2019 Update on Fire and Building Safety in Scotland Natalie Walker
Senior Associate Pinsent Masons LLP Dame Hackitts Report Review of fire and building Regulations in light of the Grenfell Tower tragedy on 14 June 2017. Interim Report Dec 2017- criticisms Final Report- May 2018 Sets out principles for a new regulatory framework 50 recommendations made to government Applies to Multi Occupancy, higher risk residential buildings over 10 stories
Recommends application to broader range of buildings Key recommendations a new regulatory framework which will drive culture change and new behaviours Recommends a clear model of risk ownership- clear responsibilities for Client, Designer, Contractor and Owner Duty holders to be overseen and held to account by Joint Competent Authority Outcomes based- not prescriptive rules and complex guidance Applies to HRRBs and buildings with sleeping risk
Scottish response to Grenfell Ministerial Working Group on Building and Fire Safety Also designed to address construction defects Edinburgh Schools and DGOne Output 3 reports: Fire Safety content of Building Standards Dr Paul Stollard Compliance and Enforcement of Building Standards Professor John Cole Review of Fire Safety for Domestic High Rise Property
Cole Report Scottish Building Control is not fundamentally broken
Pre-emptive building warrants are a strength There are implementation problems Cultural change is required Training and competence of building control staff Lack of building control resources Digital evidence Verification Penalties Stollard Report
National hubs to verify fire safety engineering Combustible Cladding Ban Escape stairways Evacuation Sounders Extension of automatic fire suppression systems. Fire Safety in Domestic High Rise Fire Safety Guidance for Residents
Scottish Guidance on Fire Safety in purpose built blocks of flats Scottish Guidance on Fire Risk Assessments Scottish Guidance on fire safety in specialised housing Development of a consistent regulatory approach to fire safety enforcement in common areas Potential new duty holder role Further consideration as part of review of Tenement Management Services New fire safety standards for all homes By Feb 2021:
All homes smoke alarm in the living room or lounge, and in circulation spaces such as hallways and landings. every kitchen must have a heat alarm the alarms will have to be interlinked so they can be heard throughout the property. carbon monoxide alarm where there are fixed combustion appliances. Scotland - Building Standards Technical Handbook Applies from 1 October 2019
Guidance is intended to improve safety in new high-rise buildings, lowering the minimum building height at which non-combustible wall cladding is to be provided from 18 metres to 11 metres. Additional escape stairs and storey identification signs to assist fire and rescue services in the event of a partial or full-scale evacuation. Product Safety Government fire door testing programme Testing standards for composite fire doors Testing standards for timber doors
Recall of failed doors? Assessment of construction product performance Brexit implications Questions?
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