In February 2010, the Sentencing Guidelines Council issued 'definitive guidelines' in relation to corporate manslaughter and health and safety offences causing death. An organisation will be guilty of corporate manslaughter if a person to whom they owe a duty of care dies as a result of the way that the organisation runs its activities and it is found that the way that the organisation's activities were managed breached the duty of care owed to that person. Most commonly, the duty of care will be owed in the context of health and safety. The sentencing guidelines create a framework enabling the court to assess the seriousness of an offence.
The guidelines encourage the courts to take into account the following factors when making a judgement: the foreseeability of serious injury; how far short of acceptable standards the organisation fell; how common the breach was; and how high up the organisation the breach went.
The guidelines also contain a non-exhaustive list of aggravating factors that include the number of deaths, failure of the organisation to heed warnings (whether from regulatory bodies, employees or other persons) and cost cutting at the expense of safety. Mitigating factors are also covered. These include: prompt acceptance of responsibility; a high level of co-operation in the investigation; efforts to remedy the defect; a good safety record; and a responsible attitude to safety.
Corporate clients need to be aware of the following key aspects to emerge from the guidelines:
- the appropriate fine on conviction of corporate manslaughter will seldom be less than £500,000, and may be measured in millions of pounds;
- where another health and safety offence has caused death, the appropriate fine will seldom be less than £100,000, and may be measured in several hundreds of thousands of pounds or more;
- when considering what level of fine to impose, the court should take into account any effect the fine may have on innocent employees, but should not take account of any effect on shareholders or directors, nor any effect on the prices which the organisation may charge;
- in some serious instances, it may be acceptable that the fine could have the effect of putting the organisation out of business.
- the court should usually impose a publicity order (such an order is only available on conviction for corporate manslaughter). The order will form part of the penalty and may include details of the conviction, such as the amount of the fine and the terms of any remedial order.