Sentencing guidelines update

As reported in last month’s edition, the Sentencing Guidelines Council (SGC) is currently consulting on its sentencing guideline for cases of corporate manslaughter and offences under health and safety legislation that cause death.

The SGC has rejected the advice of the Sentencing Advisory Panel who recommended that fines be linked to companies’ annual turnover. The SGC has concluded that this approach could result in an unfair outcome and companies could adjust their corporate structures to seek to reduce the fine. There is also a question mark over how this kind of principle would be applied to public bodies.

In place of the turnover linked approach, broader principles in relation to the level of fines are being proposed:

• Corporate manslaughter - fines will seldom be less than £500,000 and may be measured in millions of pounds
• Causing death under the HSWA 1974 - appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.

So from this starting point, where are Judges to go when settling on the level of fines?

The guideline seeks to provide a route map to assist Judges when determining the level of fine in prompting them to consider:

The seriousness of the offence

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

The presence of any aggravating factors

• More than one death or very grave personal injury in addition to death
• Failure to heed warnings or advice, whether from officials or employees or other persons
• Costs cutting at the expense of safety
• Deliberate failure to obtain or comply with relevant licences, assessment or observation by independent authorities with a safety responsibility
• Injury to vulnerable persons.

The presence of any mitigating factors

• A prompt acceptance of responsibility
• A high level of co-operation with the investigation beyond that which will always be expected
• Genuine efforts to remedy the defect
• A good safety record
• A responsible attitude to safety, such as the commissioning of expert advice www.advantagehs.co.uk or the consultation with employees or others affected by the organisation’s activities.

While the SGC has rejected a direct correlation between profit or turnover and level of fine the turnover of a company is not irrelevant. It recommends that a Court consider both turnover and profit of a company in gauging its resources to determine the level of fine to be imposed. The Court can ask to see a company’s published accounts for the past 3 years to assist them in making such a judgement.

What may be even more damaging is the ability of the Courts to impose publicity orders where there is a conviction for corporate manslaughter. The imposition of an order would require the publication of the conviction, specified particulars of the offence, the level of fine and the terms of any remedial order. The Judge can also consider whether a statement on a company’s website is appropriate.