After a lengthy wait, the SGC has fi nally published their Defi nitive Guidelines in relation to fi nes and sentences in corporate manslaughter and fatality cases. The Guidance is specifi cally in relation to the prosecution of companies where sentencing takes place after 15 February 2010 (as opposed to the offence taking place following this date) and does not relate to sentences involving individuals.
The previous fear that future defendants would be hit hard in the pocket with fi nes linked to a percentage of the company’s turnover has been allayed. The SGC has rejected the Sentencing Advisory’s Panel proposal, commenting its application across a wide range of different companies and organisations was unlikely to produce a fair and effective way of imposing fi nes. The diffi culty in applying the proposal to public and third sector bodies was also highlighted, as was the risk that corporate structures would be adjusted to avoid the consequences of an offence.
Instead, the SGC has proposed a four-stage approach which would include consideration of various factors in the incident circumstances, such as whether serious injury was foreseeable and how far short the defendant fell from the requisite standard of care. The court should then consider the aggravating and mitigating factors. Multiple deaths or grave personal injury in addition to a death, failure to heed warnings and evidence of cost cutting were highlighted as aggravating factors. A prompt acceptance of responsibility, genuine efforts to remedy the defect and a previous good safety record were highlighted as mitigating factors. At the third stage, the court should consider the “nature, fi nancial organisation and resources of the defendant” – to include considering the fi nancial information for a three-year period, including the year of the offence with a recommendation that the court also considers the consequences of the fi ne – such as the “effect on the employment of the innocent” or whether the effect of the fi ne would put the company out of business and, if so, whether this is an acceptable consequence.
In respect of the guidance on the level of fi nes, whilst it was noted that fi nes are likely to vary depending upon the nature of the offence and the individual circumstances of the defendant, the SGC has confi rmed that the fi nes must be “punitive and suffi cient to have an impact on the defendant.” In respect of Corporate Manslaughter, which would involve a gross breach of duty at a senior level within the organisation, the SGC has stated “The appropriate fi ne will seldom be less than £500k and may be measured in millions of pounds.” In relation to offences under the HSWA the SGC states “where the offence is shown to have caused death, the appropriate fi ne will seldom be less than £100k and may be measured in hundreds of thousands of pounds or more.”
The SAP’s proposal for a publicity order in cases of corporate manslaughter conviction has also been included in the SGC’s Guidance which states: “Such an order should ordinarily be imposed in a case of corporate manslaughter.” A court may require publication in a specifi ed manner of the conviction, specifi ed particulars of the offence, the amount of fi ne and terms of any remedial order. This appears to be in line with a similar power in Australia where a supermarket chain was ordered to print details of a manslaughter conviction on its carrier bags. The Guidance also makes reference to remedial orders where a defendant has not remedied a failing involved in the offence by the time of the hearing. In such circumstances, the prosecution should give notice of any remedial order they wish to seek, and the judge will then personally endorse the fi nal form of the order. A full copy of the Guidance can be found at: http://www.sentencing-guidelines.gov.uk/docs/guideline_on_corporate_manslaughter.pdf