With the first corporate manslaughter case due to be heard next week, the Sentencing Guidelines Council has just announced new guidelines for sentencing companies found guilty. Tara Craig sums them up.
The guidelines: some key points
Elements of the offences
- Corporate manslaughter offences can be committed only by organisations, not by individuals
- They have their root in a breach of duty or care under the law of negligence
- They are committed only where death is shown to have been caused by the gross breach of duty.
- Factors likely to affect seriousness
- How foreseeable was serious injury?
- How far short of the applicable standard did the defendant fall?
- How common is this kind of breach (in this organisation)?
- Was more than one death involved?
- Were costs cut at the expense of safety?
Death at work: the numbers |
Source: Health and Safety Executive |
Factor likely to afford mitigation
- A prompt acceptance of responsibility
- Genuine efforts to remedy the defect
- A good health and safety record.
Financial information: size and nature of an organisation
- The law must expect the same standard of behaviour from large and small organisations
- A fixed correlation between the fine and either turnover or profit is not appropriate
- In assessing the financial consequences of a fine, the court should consider the effect on the employment of the innocent. The impact on shareholders and directors is not normally relevant
- Whether the fine will have the effect of putting the defendant out of business will be relevant – in some cases, this may be an acceptable consequence.
Level of fines
- There will be a broad range of fines because of the range of seriousness involved, and the differences in the circumstances of the defendants
- Fines cannot and do not attempt to value a human life in money. Civil compensation will be payable separately
- Where the offence is shown to have caused death, the appropriate fine will seldom be less than £100,000, and may be measured in hundreds of thousands of pounds or more.
Cotswold Geotechnical Holdings (CGH) was charged with corporate manslaughter in relation to the death of Alexander Wright on 5 September 2008. Wright, 27, who was employed by CGH as a junior geologist, was taking soil samples from inside a pit that had been excavated as part of a site survey, when the sides collapsed, crushing him. CGH director Peter Eaton was charged with gross negligence, manslaughter and an offence contrary to Section 37, Health and Safety at Work Act 1974. CGH has also been charged with failing to discharge a duty contrary to section 33, Health and Safety at Work Act 1974.
Compensation
The first case
- The assessment of compensation in cases of death will involve payment of sums well beyond the powers of a criminal court, and will ordinarily be covered by insurance
- In most cases, the court should conclude that compensation should be dealt with in a civil court. There may be occasional cases – for example, if the defendant is uninsured and payment may not otherwise be made – when consideration should be given to a compensation order in respect of bereavement and/or funeral expenses.
Costs
- The defendant should ordinarily (subject to means) be ordered to pay the properly incurred costs of the prosecution.
Publicity orders
In the case of corporate manslaughter only, publicity orders require publication, in a specified manner, of:
- The fact of conviction
- Specified particulars of the event
- The amount of any fine
- The terms of any remedial order.
Remedial orders
- A defendant should, by the time of sentencing, have remedied any specific failings involved in the offence.
Prosecution for corporate manslaughter: FAQs
Q What is the basis for the prosecution of an organisation under the Corporate Manslaughter and Corporate Homicide Act 2007?
A Corporate liability is now based on the ways in which an organisation’s activities are managed and organised, meaning that it is easier for the authorities to prosecute companies and large organisations. An organisation will be guilty of an offence if the way in which its activities are managed or organised causes a person’s death, and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. This will be the case only if the way in which the organisation’s activities are managed or organised by its senior management is a substantial element of the breach. An organisation’s ‘senior management’ is defined as the people who play significant roles either in making decisions about how all or a substantial part of its activities are to be managed or organised, or in the actual managing or organising of all or a substantial part of those activities.
Q Following a fatality, can directors and senior managers be prosecuted?
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
A No, although individuals can be prosecuted for common law manslaughter by gross negligence. The introduction of the Act is, however, likely to lead to greater focus on management failures in fatality investigations involving organisations, and this focus may result in more prosecutions involving individuals (particularly directors and managers) under the statutory provisions within the Health and Safety at Work etc Act 1974.
Source: XpertHR frequently asked questions
