On 9 February 2010, the Sentencing Guidelines Council published a Definitive Guideline (the “Guideline”), which set out principles to guide the courts in sentencing organisations convicted of corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007, and also other health and safety offences under the Health and Safety at Work etc Act 1974, where the offence was a “significant cause of death”.
The Guideline took effect on 15 February 2010. It recommends that fines for organisations found guilty of corporate manslaughter should seldom be below £500,000 and may be measured in millions of pounds. For health and safety offences, where the offence is shown to have caused death, the Guideline says that the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.
In sentencing hearings since 15 February 2010, the courts have been placing a great deal of weight on the Guideline. Fines above six figures are now commonplace, even when there has been a guilty plea. For example, on 23 June 2010, Hanson Building Products were fined £280,000 (plus almost £30,000 in costs) following a guilty plea and in April 2010, Serco were fined £450,000 (plus almost £50,000 costs) following a trial. Both cases involved a single fatality. Although some trends are emerging, the differences in the facts of each case mean that these can only be used as a loose guide to the sentences likely to be imposed in similar cases.
It is clear when the Guideline will apply in relation to corporate manslaughter cases, but a greater difficulty arises in deciding when the Guideline will apply in relation to other health and safety offences causing death. The Guideline specifically states that it applies in ‘cases where it is proved that the offence was a significant cause of death, not simply that death occurred’. It is therefore open to defendants to argue that the Guideline should not apply in any given case.
The difficulty here is the interpretation of the word ‘significant’. ‘Significant’ has been held to mean ‘more than minimal’ (in death by dangerous driving cases) or ‘noteworthy or of considerable importance’, although this was in relation to the phrase “significant risk” in the Criminal Justice Act 2003. This interpretation has subsequently been held to apply in relation to the Guideline. In a recent case, although it was argued by the defence that an employee was acting on a frolic of his own and his actions were the cause of the death, the judge held that the defendant’s employer’s lack of policy and supervision were nevertheless a significant cause of the death. It held that the requirement was simply that the cause was of some significance or importance and that a small contributory cause could be sufficient. It has also been held, in a different case, that because the accident could not have happened in a safe place of work, the defendant’s failure to make safe the place of work was a more than minimal cause and therefore not insubstantial.
It seems, therefore, that the phrase ‘significant cause’ is being interpreted consistently by the courts to mean a ‘more than minimal’ cause. This broad interpretation is likely to result in the Guideline being used in more cases of health and safety offences causing death than was originally envisaged with the potential for substantial fines to be imposed as a result.