In February 2010 the Sentencing Guidelines Council (SGC) published guidance on the sentencing of organisations for the offences of corporate manslaughter (under the Corporate Manslaughter and Corporate Homicide Act 2007) and lesser health and safety offences (primarily those contrary to the Health & Safety At Work etc Act 1974) where the breach was a significant cause of death. This guidance applies only to England and Wales but, in the absence of specific Scottish guidance, the Scottish Courts are likely to apply the same or similar criteria, or at least be guided by the SGC approach.
The SGC recommend that fines for the offence of corporate manslaughter should "seldom be less than £500,000 but may be measured in millions of pounds". Where there is no prosecution for corporate manslaughter but it is established that a health and safety offence was a significant cause of death the fine should not normally be less than £100,000 but may be hundreds of thousands of pounds.
The SGC outline a number of factors which should be considered by the Court when deciding the seriousness of a particular case. These include: how foreseeable the injury was; how far short of the applicable standard the defendant fell; the defendant organisation's overall health and safety record; and the extent to which senior officers of the company were responsible for the breach.
A number of factors are also specifically listed as aggravating an offence and these include: multiple fatalities; failure to heed warnings or advice on health and safety matters; deliberate failure to obtain or comply with relevant licences; injury to vulnerable individuals; and cost cutting at the expense of safety.
Conversely, the following factors will be considered to afford mitigation: early guilty pleas; high levels of co-operation with investigators; genuine efforts to remedy the breach; a good overall health and safety record; and a responsible attitude to health and safety.
The SGC noted that fines are designed to be punitive and should be sufficient to have a painful impact on the defendant organisation. This reflects the existing common law position expressed in the case of F. Howe & Son (Engineers) Limited in which it was stated that a fine should be large enough to bring the health and safety message home "not only to those who manage [the company] but also to its shareholders".
While the SGC specifically states that the level of fine should not correspond directly to either turnover or profit, the financial status of the defendant organisation (and any related organisations) will also be taken into consideration by the Courts.
Finally, it is interesting to note that the SGC recommended that a Publicity Order should be made in every case involving a corporate manslaughter conviction.
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