UK: Definitive Sentencing Guidance For Corporate Manslaughter Confirms Rejection Of Turnover Test

Sentencing Guidelines Council publishes definitive guideline on corporate manslaughter and health and safety offences causing death

As foreshadowed in our last client briefing and following the close of the consultation period early last month, the Sentencing Guidelines Council ("SGC") published its final definitive guideline on 9 February, setting out principles to guide courts in dealing with companies and organisations that cause death through a gross breach of care or where breach of health and safety requirements are a significant cause of the death.

The guideline applies to the sentencing of organisations on or after 15 February 2010 and courts must have regard to it when sentencing organisations for such offences where death has resulted. As the foreword to the guideline sets out, it "takes a different form from that used for most other offences. It sets out the key principles relevant to assessing the seriousness of the range of offences covered which may involve a wide variation in culpability." So, whilst the guideline makes it clear that fines should be punitive and substantial – fines for companies and organisations found guilty of corporate manslaughter may be millions of pounds and should seldom be below £500,000; for other health and safety offences that cause death, fines from £100,000 up to hundreds of thousands of pounds should be imposed – within that general guidance there will be room for a significant amount of discretion.

It is also important to stress that the guideline is not applicable simply because a death has occurred in an employment context. Rather, it is reserved for those cases where it is proved that the breach was a significant cause of death, not simply that death occurred. There will be cases where a breach is identified in the aftermath of a death, without it being the main or a significant cause of the death or deaths. Because the link between death and breach is not required in order to secure a conviction under the Health and Safety at Work Act – where it is only necessary to prove a failure to ensure safety, rather than how or why an accident happened – it is likely that proving causation will be reserved for those cases which are regarded as particularly egregious and "it is to be expected that some cases will be prosecuted in the alternative despite the increased complexity that that will entail for a jury."

The list of factors for courts to consider in assessing the seriousness of the offence are familiar territory. However, once that is assessed, in deciding the level of fine the emphasis is on the financial circumstances of the offending organisation – the fines should hurt – and the guideline emphasises the need for a court to have full, accurate and reliable financial information. However, "a fixed correlation between the fine and either turnover or profit is not appropriate". The guideline states that "whilst a fine is intended to inflict painful punishment, it should be one which the defendant is capable of paying, if appropriate over a period which may be up to a number of years."

The guideline covers Publicity Orders which "should be imposed in virtually all cases". The provision which gives a court power to order that a conviction be publicised as well as power over the content of such publicity is not yet in force but it is likely that implementation of that provision will follow shortly after 15 February 2010 when this guideline will apply.

Tariffs for health and safety breaches have been increasing. Fines of over £100,000 have been much more frequent in recent years. Not only has that been the trend, the Health and Safety (Offences) Act 2008 which came into force in January 2009 increased the maximum fine that could be imposed in the lower courts to £20,000 for most offences and made a custodial sentence available as a sentencing option for more offences.

Although companies can breathe a collective sigh of relief that the fines expected may not be as swinging as at first proposed, nevertheless the advent of this guideline will give further focus to making an example of those companies whose conduct causes death.

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