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Corporate Manslaughter & Health and Safety Offences Causing Death - Sentencing Guidelines Council Definitive Guideline

4 March 2010
The facts

The Sentencing Guidelines Council has issued definitive guidelines for Corporate Manslaughter & Health and Safety Offences Causing Death. The guidelines are operative from 15th February 2010 and apply only to organisations and not to individuals. They will apply to cases that appear before the Courts after the 15th February 2010, regardless of the date of the incident.

The guidelines list the factors likely to affect seriousness as:

a) How foreseeable was the injury?;
The more foreseeable it was, the graver will be the offence.
b) How far short of the applicable standard did the Defendant fall?;
c) How common is this kind of breach in this organisation?;
d) How far up the organisation did the breach go?
The higher up the responsibility for the breach, the more serious would be offence be.

Other aggravating factors would include: more than one death or very grave personal injury in addition to death; a failure to heed warnings of advice, whether from officials, the inspectorate or employees; cost cutting at the expense of safety; a deliberate failure to obtain or comply with relevant licenses; injury to vulnerable persons.

Mitigating factors would include:

i) A prompt acceptance of responsibility;
ii) A high level of cooperate with the investigation;
iii) Genuine efforts to remedy the defect; a good health and safety record; and
iv) A responsible attitude to health and safety, such as the commissioning of expert advice or the consultation of employees or others affected by the organisation’s activities.

Generally, an unauthorised act of an employee will significantly reduce the culpability of the Defendant.

The size of the organisation was a relevant factor. The means of the Defendant were relevant to the fine. The Court would require information about the financial circumstances of the Defendant. The best practice would be to call for the relevant information for a 3 year period, including the year of the offence. Generally, the same standard of behaviour had to be expected from a large and a small organisation and smallness would not by itself be allowed to mitigate, nor would largeness by itself aggravate. However, in some instances, a large organisation might have less excuse for not dealing properly with matters affecting health and safety given its greater access to expertise, advice and training resources. Whilst it was not appropriate to apply a fixed correlation between the fine and either turnover or profit of the organisation, nonetheless, the Court should look carefully at turnover and profit in order to gauge the resources of the Defendant. It was generally just that a wealthy Defendant should pay a larger fine than a poor one. Where a fine was intended to inflict painful punishment it should be one which the Defendant was capable of paying. In assessing the consequences of the fine, the Court should consider: the effect on the employment of the innocent; whether the fine will have the effect of putting the Defendant out of business. In some bad cases this might be an acceptable consequence.

It would not be normally relevant to consider the effect on shareholders or Directors or the likelihood of an increase in prices charged by the Defendant (unless the Defendant was a monopoly supplier of public services) or its liability to pay civil compensation.

The position of a provider of services to the public was different. Although the same standards of behaviour had to be expected, a different approach to determining the level of fine might well be justified. This was to follow the approach of the Court of Appeal in Milford Haven Port Authority where Lord Bingham CJ said “If a very substantial financial penalty will inhibit the proper performance by a statutory body of the public function that it has been set up to form, that is not something to be disregarded”.

The level of fine in the case of corporate manslaughter would rarely be less than £500,000.00 and might be measured in millions of pounds. The range of seriousness involved in health and safety offences was greater than that for corporate manslaughter but where the offence was shown to have caused death, the appropriate fine would rarely be less than £100,000.00 and might be measured in hundreds of thousands of pounds, or more.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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