This time last year, we reported on the Sentencing Advisory Panel’s (SAP) consultation on sentencing for the new statutory offence of Corporate Manslaughter and health and safety offences resulting in death [please click here to view]. The deadline for consultation submissions to the SAP having expired in February 2008, draft sentencing guidelines were expected in the later half of that year. However, they are still awaited.
To recap, one key proposal had been for judges to base the fine on the offenders' annual turnover averaged over the three years prior to sentencing. The provisional starting point for an offence of corporate manslaughter committed by a first time offender pleading not guilty would be a fine amounting to 5% of the offender's average annual turnover, with aggravating and mitigating factors usually fixing the fine between 2.5% to 10%.
We understand that further work has been required to consider whether an acceptable approach to the calculation of a fine could be developed, including whether the approach to imposing fines should be different for public sector bodies from that for private sector organisations. The Sentencing Guidance Council, to which the SAP reports, says that the current position is that the Council is due to consider draft guidelines at its June meeting. If it is happy with these guidelines then they might then see the public light of day around December 2009 or January 2010. If however the Council decides against the turnover basis approach suggested by the SAP, we may start over with a new public consultation at that point.
Once the guidelines finally come in, we understand that they will apply to cases as at the date of sentencing. So in a sense they will be retrospective. This is seen as the norm and it is not expected that a 'transitional' period will be allowed for existing cases, even where a guilty plea was entered earlier.
Still on the issue of sentencing, we have previously provided a note on the introduction of the Health and Safety (Offences) Act [please click here to view] the primary effects of which are to provide for possible imprisonment for most health and safety offences and to increase the maximum fine available in the magistrates’ court for some offences. Whilst the need for sentencing guidelines to support the HSO Act has been identified – after all, as individuals are now at risk of losing their liberty in the context of what most recognise to be a specialist area of criminal law, it would seem sensible for the Courts to be assisted by a degree of considered and formalised guidance - it is understood that this has not been included in the current work programme of the Sentencing Guidance Council because of current work pressures and the need to prioritise other projects. In order that some guidance may be available to assist the courts in the interim in dealing with a case affected by the HSO Act, it has apparently been agreed that a statement of general principles concerning the use of custodial sentences should be developed for inclusion within the first update of the Magistrates’ Court Sentencing Guidelines in 2009. These are yet to be published.