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Guideline on sentencing Corporate Manslaughter offences published
The Sentencing Guidelines Council has published the final sentencing Consultation Guideline on the Corporate Manslaugher and Corporate Homicide Act 2007 (CMCH).
The Council is recommending that fines for convicted organisations “may be measured in millions of pounds and should seldom be below £500,000”.
Convicted organisations can also anticipate publicity orders with potentially disastrous effects on a business. The first prosecution under the CMCH Act act will be heard in February 2010.
The consulation period ends on 5th January 2010 and the final Guideline is expected to be published soon after. The Guideline also deals with factors affecting seriousness and mitigation.
Factors likely to affect seriousness
Seriousness should ordinarily be assessed first by asking:
- Forseeability: how foreseeable was serious injury? The more foreseeable it was, the graver usually will be the offence.
- Scale: how far short of the applicable standard did the defendant fall?
- Frequency: how common is this kind of breach in this organisation? An isolated breach is likely to be significantly less serious than one which is endemic.
- Scope: how far up the organisation does the breach go? Usually, the higher up the responsibility for the breach, the more serious the offence
Other factors likely to aggravate the offence (the list is not exhaustive):
- Number of deaths: more than one death, or very grave personal injury in addition to death;
- Previous warnings: failure to heed warnings or advice, whether from officials such as the Inspectorate, or by employees, or by other persons;
- Motivation: cost-cutting at the expense of safety;
- Intentions: deliberate failure to obtain or comply with relevant licences, at least where the process of licensing involves some degree of control, assessment or observation by independent authorities with a safety responsibility;
- Victim: injury to vulnerable persons.
Factors likely to afford mitigation:
- Acceptance: a prompt acceptance of responsibility;
- Cooperation: a high level of co-operation with the investigation, beyond that which will always be expected;
- Prevention: genuine efforts to remedy the defect;
- Record: a good safety record;
- Attitude: a responsible attitude to safety, such as the commissioning of expert advice or the consultation of employees or others affected by the organisation’s activities
Comment: The scale of fines under the CMCH Act has attracted most press attention. However, organisations should take as much cognisance of the factors in the Guideline that affect the ‘seriousness’ of an offence. These factors will no doubt be considered by the Police and Crown Prosecution Service when deciding on the strength of any potential breach.
A renewed focus on effective preventive action, and minimising exposure to the seriouness factors above, are the best ways avoid a tragic workplace death and subsequent damaging prosecution under the CMCH Act.