Corporate Manslaughter

Date Updated: January 2012
Title: Homicide
Offence: Corporate Manslaughter
Legislation: Corporate Manslaughter and Corporate Homicide Act 2007 section 1
Mode of Trial: Indictable only
Statutory Limitations & Maximum Penalty: Fine (no maximum limit)

Relevant Sentencing Guidelines

The SGC definitive guideline 'Corporate Manslaughter & Health and Safety Offences Causing Death' applies to sentencing on or after 15 February 2008.

Approach to sentence

The normal approach to sentence should be:

1. consider seriousness (paragraph 6);
2. identify aggravating or mitigating circumstances (paragraphs 7 - 11);
3. consider the nature, financial organisation and resources of the defendant (paragraphs 12 - 18);
4. consider the consequences of a fine (paragraphs 19 - 21);
5. consider compensation (but see paragraphs 27 - 28);
6. assess the fine in the light of the foregoing and all the circumstances of the case;
7. reduce as appropriate for any plea of guilty;
8. consider costs;
9. consider publicity order (paragraphs 30 - 32);
10. consider remedial order (paragraphs 33 - 36).

1.  Consider seriousness

Seriousness should ordinarily be assessed by asking:

• How foreseeable was serious injury?  The more foreseeable it was, the graver usually will be the offence.
• How far short of the applicable standard did the defendant fall?
• How common is this kind of breach in this organisation?  How widespread was the non-compliance? Was it isolated in extent or indicative of a systematic departure from good practice across the defendant's operations?
• How far up the organisation does the breach go? Usually, the higher up, the more serious the offence.

2.  Identify aggravating or mitigating circumstances

Aggravating factors include:

• more than one death, or very grave personal injury in addition to death;
• failure to heed warnings or advice, whether from officials such as the Inspectorate, or by employees (especially health and safety representatives) or other persons, or to respond appropriately to 'near misses' arising in similar circumstances;
• cost-cutting at the expense of safety;
• 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 health and safety responsibility;
• injury to vulnerable persons (including those susceptible to exploitation)

Mitigating factors include:

• a prompt acceptance of responsibility;
• a high level of co-operation with the investigation, beyond that which will always be expected;
• genuine efforts to remedy the defect;
• a good health and safety record;
• a responsible attitude to health and safety, such as the commissioning of expert advice or the consultation of employees or others affected by the organisation's activities.

3.  Consider the nature, financial organisation and resources of the defendant

• The court should look carefully at both turnover and profit, and also at assets, to gauge resources.
• A fixed correlation between the fine and either turnover or profit is not appropriate.

4.  Consider the consequences of a fine

In assessing financial consequences of a fine, the court should consider:

• the effect on the employment of the innocent may be relevant;
• any effect upon shareholders will, however, not normally be relevant; those who invest in and finance a company take the risk that its management will result in financial loss;
• the effect on directors will not, likewise, normally be relevant;
• nor would it ordinarily be relevant that the prices charged by the defendant might in consequence be raised, at least unless the defendant is a monopoly supplier of public services;
• the effect upon the provision of services to the public will be relevant; although a public organisation such as a local authority, hospital trust or police force must be treated the same as a commercial company where the standards of behaviour to be expected are concerned, and must suffer a punitive fine for breach of them, a different approach to determining the level of fine may well be justified;
• the liability to pay civil compensation will ordinarily not be relevant; normally this will be provided by insurance or the resources of the defendant will be large enough to meet it from its own resources;
• the cost of meeting any remedial order will not ordinarily be relevant, except to the overall financial position of the defendant; such an order requires no more than should already have been done;
• whether the fine will have the effect of putting the defendant out of business will be relevant;

5.  Consider compensation

In most cases the court should conclude that compensation should be dealt with in a civil court, and should say that no order is made for that reason.

6.  Assess the fine in the light of the foregoing and all the circumstances of the case;

The appropriate fine will seldom be less than £500,000 and may be measured in millions of pounds.

7.  Discount for any plea of guilty

8.  Consider costs

The defendant ought ordinarily (subject to means) to be ordered to pay the costs of the prosecution.

9.  Consider publicity order

See paragraphs 30-32 and Corporate Manslaughter and Corporate Homicide Act 2007 section 10

10.  Consider remedial order.

See paragraphs 33-36 and Corporate Manslaughter and Corporate Homicide Act 2007 section 9

Prosecution Duties

1. The prosecutor will generally be required to set out in writing the aggravating and mitigating factors which it identifies (see paragraph 11).
2. Financial information. (see paragraphs 14. 17 and 18).

Annex A sets out the kind of financial information with which, in the ordinary way, a court should expect to be provided in relation to a defendant. The primary obligation to provide it lies on the defendant.

As a matter of practice, it would be helpful for the prosecution to call upon the defendant to provide financial information to the court and prosecution.

If the defendant does not do so, the prosecution will be expected to assemble what can be obtained from public records and furnish that to the court.

The best practice will usually be to call for the relevant information for a three year period including the year of the offence, so as to avoid any risk of atypical figures in a single year.

It will not ordinarily be necessary for the prosecution to embark upon analysis of the figures, as distinct from ensuring that the raw material is available to the court, and it may not in any event normally have the expertise to do so.  In a few complex cases the prosecution can if genuinely necessary undertake such analysis either in-house or by the instruction of an accountant and if it can justify the expense as part of its necessary costs those costs will ordinarily be recoverable from the defendant. 

Relevant Sentencing Case Law

Per Lord Bingham CJ in R v Milford Haven Port Authority [2000] 2 Cr.App.R (S.) 423 at 434: "If a very substantial financial penalty will inhibit the proper performance by a statutory body of the public function that it has been set up to perform, that is not something to be disregarded."

See Banks on Sentence, Volume 2 Pages 686 et sequitur.

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