Sentencing and penalties – Blurring the guidelines

A year after the guidelines on the appropriate penalties for corporate manslaughter came into force Paul Verrico and Tim Hill consider their impact on fines imposed in health and safety cases in general, based on their own monitoring of prosecutions in 2010.

In February last year, the Sentencing Guidelines Council (SGC) issued its Definitive Guidelines in relation to penalties for corporate manslaughter. The Guidelines are intended to create a structure to enable a sentencing judge to consider minimum thresholds, to assess the seriousness of the offence, and any appropriate mitigation, before deciding on the size of penalty.

The Guidelines document is extremely easy to use and the factors to be considered as aggravating and mitigating are described succinctly. Capable advocates will almost certainly address these factors as they seek to prove their case, whether that is a plea in mitigation, or in a trial situation.

Importantly, the Guidelines state specifically that the effect on stakeholders, including directors and customers, is irrelevant to the size of fine imposed unless the defendant provides public services.

However, not everyone realises that, as well as applying to corporate manslaughter the guidelines equally apply to health and safety offences causing death. Of course, there are considerable differences between cases of corporate manslaughter and those in which a health and safety offence is prosecuted.

Corporate manslaughter involves both a gross breach of duty of care and senior management failings — i.e. at systemic level — whereas a health and safety offence can be committed whenever the defendant cannot show that it was not reasonably practicable to avoid a risk of injury, meaning that the failing can be at an operational rather than a systemic level.

There are also different burdens of proof. Corporate manslaughter is treated as a standard criminal matter, which involves the prosecution identifying the acts or omissions it is relying upon, and then proving them. By contrast, in a prosecution for a health and safety offence, there is a reverse burden of proof, i.e. the prosecutor need only show that there has been a failure to ensure safety. It is then up to the defendant to show whether it has done everything reasonably practicable.

For corporate manslaughter, the prosecution must prove that the breach was a significant cause of death, whereas for a standard health and safety offence it is generally the case that a conviction can be had without demonstrating that any injury was caused by the failure to ensure safety, provided that there was a risk.

It is here that the new battleground for prosecutors and health and safety defence lawyers is emerging: the Guidelines and minimum thresholds only relate to cases where it is proved that the offence was a significant cause of death, not simply that death occurred. This may be an aspect of the Sentencing Guidelines that has not yet been effectively explored.

Where’s the breach?

The Crown Prosecution Service (CPS) sets out its guidance in the event of a fatal accident on its website. Various factors are referred to, and reference is also made to the primary legislation (Corporate Manslaughter and Corporate Homicide Act, Health and Safety at Work, etc. Act).

The CPS guidance specifically notes that an employer retains responsibility for his undertaking even if he sub-contracts it; that an employer cannot escape liability by showing that, at a senior level, it had taken steps to ensure safety if, at the operating level, all reasonably practicable steps had not been taken; and, citing regulation 21 of the Management of Health and Safety at Work Regulations 1999, the CPS website suggests that it is no defence to claim that the breach was caused by an act or omission of an employee, if it was reasonably practicable for the employer to have ensured safety.

The CPS prosecution policy then refers directly to the HSC (now HSE)’s own enforcement policy and notes that “in the public interest, enforcing authorities should normally prosecute, or recommend prosecution, where, following investigation or other regulatory contact, one or more of the following circumstances apply€

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