Biggart Baillie Solicitors

Guidance Published on Corporate Homicide Sentencing

11 February 2010

Guidance Published on Corporate Homicide Sentencing

Yesterday the Sentencing Guidelines Council, the body that puts together sentencing guidelines for courts in England and Wales, published guidance on the sentencing of defendants found guilty of offences under the Corporate Manslaughter and Homicide Act 2007 and organisations whose breaches of the Health & Safety at Work Etc Act 1974 have been a significant cause of death. The purpose of the Guidelines is to encourage a consistent approach to sentencing and the English and Welsh courts must have regard to the Guidelines when issuing sentences. 

The Guidelines apply to the sentencing of organisations on or after 15 February 2010.

The Guidelines set out:

• The main principles the court should consider when assessing the seriousness of the offence;
• The principles to be considered when assessing financial penalties; and
• The additional powers available to the Court as well as financial penalties.

Seriousness of the Offence
When considering the seriousness of the offence, the court should consider the extent to which serious injury was foreseeable and how common the particular kind of breach was within the defendant’s organisation. If non-compliance was widespread, rather than an isolated incident, the offence is likely to be considered to be more serious.

In addition, other factors are likely to make the offence more serious. The number of deaths will be taken into consideration, and also whether the organisation cut costs at the expense of safety. The fact that the organisation failed to take warnings or advice from officials or employees on board will also be given weight.

The Guidelines also set out factors that may be considered to mitigate the offence. If the organisation accepted responsibility promptly and was exceptionally co operative in relation to the subsequent investigation into the incident, these factors may lead the court to take a less serious view of the offence. In addition, if the organisation has made genuine efforts to remedy the health and safety breach and, in general, has a good health and safety record, these points may mitigate the seriousness of the offence.
 
Level of Financial Penalties
The Sentencing Guidelines Council decided that it was not appropriate to have a fixed link between the size of the fine and the turnover or profit of the defendant organisation. Both large and small organisations should be expected to meet the same safety standards. The court should look carefully at both turnover and profit, and also the assets of the business, however, in order to determine its resources as the means of an organisation are relevant to the size of any fine and fines are the main penalty that can be imposed against an organisation.

The court should consider a number of factors when assessing the financial consequences of the fine, including its effect on the employment of innocent workers and whether the level of the fine will lead to the organisation going out of business. The effect on the provision of services to the public will be relevant, although a public organisation like a local authority or Hospital Trust must be treated the same as a commercial business.

The effect on shareholders and /or will not normally be relevant to the level of the fine.

The Guidelines suggest that the appropriate level of fine for corporate manslaughter will seldom be less than £500,000 and may be measured in millions of pounds.

For health and safety offences that have led to a death, the appropriate fine will rarely be less than £100,000 and may be measured in hundreds of thousands of pounds or more. 

A guilty plea should be recognised by an appropriate reduction in the fine imposed.

Scotland
Scotland doesn’t have an equivalent body to the Sentencing Guidelines Council, although the Scottish Government carried out a consultation on establishing a Scottish Sentencing Council in 2008. Sentencing practice in Scotland operates mainly on a case-by-case basis, with reference to the wide experience of judges in criminal cases and Appeal Court decisions. It seems likely that, in the absence of sentencing guidelines for the Scottish courts, judges north of the border may have regard to the Guidelines issued today.

If you would like more information about any aspect of the Health and Safety services we provide, please contact David Stevenson, Partner.