The Sentencing Guidelines Council (the Council) published their definitive guideline (applicable in England and Wales but not in Scotland) on sentencing in relation to the Corporate Manslaughter and Corporate Homicide Act 2007 (the 2007 Act) on 9 February 2010. The guideline also applies to health and safety cases other than corporate manslaughter cases where it is proved that the offence was a significant cause of death, not simply that death occurred. The guideline will apply to the sentencing of organisations on or after 15 February 2010.
The publication of the guidance follows further consultation on the Council' s proposed guideline, issued in response to a consultation paper by the Sentencing Advisory Panel (the Panel). As the Council did not adopt many of the Panel's recommendations, they felt a second consultation was appropriate. However, the final guideline as now published still does not include many of the Panel's proposals.
The most prominent topic in the guideline is the level of fine to be imposed. The Panel's provisional starting point for an offence of corporate manslaughter (committed by a first time offender pleading not guilty) had been suggested as a fine amounting to 5 per cent of the offender's average annual turnover during the three years prior to sentencing. After taking into account any aggravating or mitigating factors, the court would then arrive at a fine which would normally fall within the range of 2.5 to 10 per cent of the offender's average annual turnover.
The Council, however, have concluded that this formulaic approach could inadvertently risk an unfair outcome. Therefore, according to the definitive guideline, fines for companies and organisations found guilty of corporate manslaughter may be millions of pounds and should seldom be below £500,000. This is a far more flexible approach than the Panel had proposed, and indeed largely reflects the current position adopted by the courts, although company financial information, such as turnover and profit will now always be made available to the court which will take that information into account when imposing penalties. The Council state that, with regard to the impact of any fine imposed, whilst the effect on employment of the "innocent" may be a relevant factor, the effect on shareholders, directors and prices will not be considered relevant.
The guideline also identifies factors which increase the seriousness of an offence, which include foreseeability of serious injury, whether non-compliance was common and widespread within the organisation, and how far up the organisation responsibility for the breach went.
In other health and safety cases where the offence has caused death the guideline states that the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.
The Panel had also recommended that the new sanction of Publicity Orders forcing companies and organisations to make a statement about their conviction available under the 2007 Act should be imposed in virtually all cases, and this recommendation had been included in the published guideline. Although a conviction for corporate manslaughter can attract an unlimited fine, the reputational damage associated with a conviction may be the greatest deterrent. The power to make Publicity Orders - Orders to publicise the facts and particulars of an offence - will only now come into force following the publication of the guidelines. There has been much discussion about the 'revolutionary' nature of Publicity Orders, however it is fair to say that (at least in the early days of convictions for corporate manslaughter) the media attention surrounding any conviction will somewhat overpower the requirement of such an Order.
To view the definitive guideline in full please click here (www.sentencing-guidelines.gov.uk/).
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 11/02/2010.
