On 9 February 2010 the Sentencing Guidelines Council (SGC) published a definitive guideline on the sentencing of corporations (rather than individuals) for corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) and health and safety offences which result in death contrary to sections 2 and 3 Health and Safety at Work Act 1974 (HSWA).
The guideline covers the following:
- The elements of the offences under both the CMCHA and the HSWA.
- Factors likely to affect the seriousness of the offence, including aggravating or mitigating factors.
- Factors likely to affect the financial penalty imposed - although the size of an organisation should not affect the seriousness of the offence, the size will be relevant to the determination of the financial penalty which should be imposed since a larger company is likely to have more financial resources than a smaller company. The court must consider information about the financial circumstances of the organisation before it makes its decision, but it is not required to correlate the penalty to either turnover or profit. Paragraph 19 of the guideline sets out factors that the court should consider, inter alia, when assessing the financial consequences of a fine. The fine should be sufficient to punish the defendant. It must therefore have an impact on the defendant. The SGC states that the appropriate fine for corporate manslaughter offences will rarely be less than £500,000 and may be measured in millions of pounds. The fine for health and safety offences will normally be more than £100,000 and may be measured in hundreds of thousands of pounds or more.
- Time period over which a fine should be payable - the SGC states that a large organisation should be required to pay the fine imposed within 28 days. A longer time period could be imposed for a smaller or financially stretched organisation.
- Publicity orders - these orders can only be made and should only be made in relation to corporate manslaughter offences. The aim of such orders is to act as a deterrent and punish the defendant. Publicity orders can be made in relation to offences committed after 15 February 2010 following the coming into force of section 10 CMCHA in accordance with The Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No. 2) Order 2010 (SI 2010/276).
- Remedial orders - unlike publicity orders, a remedial order may be made for health and safety offences as well as corporate manslaughter offences. The court should consider granting this order such that a defendant will be required to remedy specific failings involved in the offence.
The guideline will apply to the sentencing of organisations on or after 15 February 2010.