What you need to know
Guidance: what you need to know – sentencing guidelines
The Sentencing Guidelines Council issued a
consultation guideline late last year, following advice from the
Sentencing Advisory Panel on sentencing corporate manslaughter and
health and safety offences. Connect looks at the level of fines and
suggests that a move away from a sentencing system linked to a
company’s turnover is to be welcomed.
In May 2007 the Sentencing Advisory Panel (SAP) gave advice
suggesting that fines should be linked to the guilty company’s
turnover. The tables published in this article show fine levels
that would have been given by applying the advice of SAP.
Table 1
(PDF 50 KB) relates to sentencing corporate manslaughter offences.
Table 2
(PDF 50 KB) relates to sentencing other health and safety offences,
from which death resulted.
For the offence of corporate manslaughter, the fine calculation
proposed in SAP’s 2007 advice was that – dependant on whether the
risk of death was considered to be ‘very high’, ‘high’ or ‘some’ –
the starting level for fines ought to be 5 per cent, 3.5 per cent
and 2 per cent of turnover respectively. Thereafter, dependant on
the presence of matters which serve to mitigate or aggravate an
offence, the true range of penalty proposed was between one and 10
per cent of turnover.
The advice was similar for health and safety offences. The
starting level for fines was recommended to be 2.5 per cent, 1.25
per cent and 0.5 per cent of turnover respectively, with the true
range of penalty proposed being between one and 4 per cent of
turnover.
It’s right and proper that an organisation with a turnover of
£300,000 ought not to have the potential to be issued with a fine
of just £750 for a health and safety offence causing death, or
£6,000 for corporate manslaughter. At the other end of the scale,
those with a turnover of £1 billion, guilty of corporate
manslaughter in the most aggravating of circumstances, could be
required to pay a £100 million fine.
However, in October 2009 the Sentencing Guidelines Council
issued a proposal that moves away from the turnover-based approach
as “this was not appropriate in view of the different financial
structures and circumstances of organisations within the private,
public and third sectors”.
In the proposal, the defendant’s level of culpability is a
primary factor that should be at the forefront of the trial judge’s
mind when sentencing both corporate manslaughter and health and
safety offences.
Rather than setting out specific starting points, the Sentencing
Guidelines Council proposed a level below which a fine would not
normally be expected to fall, supported by a general indication
concerning the extent to which a fine should be above that level.
The proposal now is that for an offence of corporate manslaughter,
the fine should ‘seldom’ be below £500,000. For health and safety
offences which lead to a fatality, the fine should ‘seldom’ be
below £100,000.
Conclusion
The Sentencing Guidelines Council’s proposal to move away from a
sentencing system linked to turnover is to be welcomed. The
proposal recognises that the variation in culpability and resources
between defendants cannot be properly reflected through the
adoption of a rigid formula focused on turnover.
In corporate manslaughter, there is still the potential for big
fines against highly culpable companies, and rightly so. In terms
of those cases that could attract a fine of less than £500,000, it
will be for the courts to consider what set of circumstances should
exist for the level of fine to fall within the ‘seldom’ cases.
Considering this, corporate manslaughter occurs when there’s
been a gross breach of a duty of care at senior management level
which was the substantial cause of the death(s). Bearing in mind
the high level of wrong-doing needed to be proven by the
prosecution, it’s difficult to see a situation in which a defendant
can put forward such a persuasive argument of mitigation that the
sentence should fall within the ‘seldom’ bracket. It’s foreseeable
then that a fine will only fall below £500,000 where the defendant
doesn’t have the means to discharge a fine at that level.
A defendant must have the ability to pay a fine – a point
reiterated within the proposal. Consequently, in some (perhaps
many?) cases, the sentencing exercise will be frustrated due to the
court being unable to impose the fine it feels adequately reflects
the defendant’s culpability.
Our thanks to Weightmans LLP for its help in writing this
article.