Health, Safety and the Environment

Guidelines on sentencing Corporate Manslaughter and Health and Safety Offences Causing Death

Summary

Who does it effect?

All organisations sentenced for corporate manslaughter or health and safety offences where the offence was a significant cause of death.

When does it come into force?

It will apply to all cases sentenced after 15 February 2010.

What does it say?

It provides courts with guidance on the correct approach in assessing the appropriate fine and other penalties in such cases.

It also offers guidance on the level of such fines. For an offence of corporate manslaughter the appropriate fine will "seldom be less than £500,000 and may be measured in millions of pounds". For health and safety offences shown to have caused death, "the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more."

Detail

The guidance is intended for cases where it is proved that the offence was a significant cause of death, not simply that death occurred. This will therefore cover all convictions under Corporate Manslaughter and Homicide Act 2007 (CMCHA) but only certain offences under Health and Safety legislation (most commonly but not exclusively offences under Health and Safety at Work Act 1974 (HSWA) sections 2 and 3). All cases covered by this guidance will therefore be ones where the harm (death) makes the offence a very serious one.

Seriousness

The degree of seriousness can be further established by answering the following questions:

• How foreseeable was serious injury?
• How far short of the applicable standard did the defendant fall?
• How common is this kind of breach in this organisation?
• How far up the organisation does he breach go?

Aggravating and Mitigating features

The court may also consider the following non-exhaustive list of aggravating and mitigating features: 

Aggravating features

•  More than one death or very serious injury in addition to death
• Failure to heed warnings or advice or to respond to 'near misses'
• Cost-cutting at the expense of safety
• Deliberate failure to obtain or comply with licences relevant to the oversight of health and safety by independent authorities
• Injury to vulnerable persons, being those whose personal circumstances make them susceptible to exploitation

Mitigating factors

• Prompt acceptance of responsibility;
• High level of co-operation with the investigation, beyond that which will always be expected;
• Genuine efforts to remedy the defect;
• Good health and safety record;
• A responsible attitude to health and safety (for which the example given is consultation with experts or those affected by an organisation's activities)

The unauthorised act of an employee is unlikely to provide mitigation to an offence of corporate manslaughter given the gross breach of duty that the offence requires. It may however mitigate a health and safety offence resulting in death where there may be little culpability in the organisation itself.

The guidance supports the ongoing use of written schedules of agreed (where possible) aggravating and mitigating features; the so-called Friskies schedule.

Assessing the level of fine

The court should look carefully at turnover, profit and assets, preferably by reference to a three year period including the year of the offence. 

A fixed correlation between fine and either turnover or profit is not appropriate.

The onus is on the defendant to provide the necessary financial information and if it does not then the court is justified in making adverse assumptions.

It may be appropriate for the court to consider the following further factors in setting the level of fine:

• The effect on the employment of the innocent;
• The effect on the cost of products or services (but only where the defendant is a monopoly supplier of public services or a public authority);
• Whether the fine will have the effect of putting the defendant out of business although in some bad cases "this may be an acceptable consequence".

The following factors are unlikely to be relevant to the level of fine:

•  The effect on either shareholders and / or directors;
• The defendant's liability to pay civil compensation;
• The cost of meeting any remedial order; 

Appropriate levels of fine

For an offence of corporate manslaughter the appropriate fine will "seldom be less than £500,000 and may be measured in millions of pounds". For health and safety offences shown to have caused death, "the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more."

Other sentencing orders

Some guidance is provided on the imposition of publicity orders (available only for offences of corporate manslaughter under CMCHA). Such orders will require a defendant to publish details of their conviction in terms stipulated by the court. In particular the guidance suggests that any comment added by the defendant alongside the required announcement should be separated from it and clearly identified as such. Publicity orders will not be available for offences committed before 15 February 2010 even if the sentencing occurs after that date.

There is also guidance on the imposition of costs and remedial orders available in both corporate manslaughter and offences under The Health and Safety at Work Act 1974.

 

For full details on the sentencing guidelines, please click here.

 

For more information, please contact: Jonathan Grimes