Corporate Manslaughter review and sentencing consultation

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(No Transcript)
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Corporate Manslaughter review and sentencing
consultation

• Paul Southby, Regional Director, CBI East
  Midlands
• Talk for NOSHA 23 April 2008

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Corporate Manslaughter and Corporate Homicide
Act 2007

• 10 year gestation period
• Replaces existing law only with regard to
  corporations and other relevant organisations
• Does not apply to individuals
• In force from 6 April 2008
• Sentencing guidelines consultation underway

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The offence

• Organisation guilty if the way its activities
  are managed or organised
• Causes a persons death and
• Amounts to a gross breach of a relevant duty of
  care by the organisation to the deceased and
• The way its activities are managed and organised
  by its senior management is a substantial element
  in that breach

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What is an organisation?

• A corporation
• A department or body listed in the schedule e.g.
  HMRC/MoD etc.
• A police force
• A partnership, or trade union or employers
  association, that is an employer

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Important components of the offence

• What are
• A relevant duty of care?
• A gross breach of duty?
• Senior management?

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Relevant duty of care

• Any of the following duties owed by an
  organisation under the law of negligence
• A duty owed to employees or others
• A duty owed as occupier of premises
• A duty owed in connection with the supply of
  goods/services, or the carrying on of
  construction or maintenance operations, or the
  carrying on of any other activity on a commercial
  basis

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Gross breach of duty

• Conduct alleged to amount to a breach of a
  relevant duty is gross if it falls far below what
  can reasonably be expected of the organisation in
  the circumstances
• Factors for the jury include how serious the
  failure was, how much of a risk of death it
  posed, attitude to health and safety within the
  organisation, any relevant guidance, any other
  matter they consider relevant

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Senior management

• The persons who play significant roles in
• The making of decisions about how the whole or a
  substantial part of its activities are to be
  managed or organised
• The actual managing or organising of the whole or
  a substantial part of those activities

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Sanctions/orders available to the court

• A fine
• On the application of the prosecution, a remedial
  order
• A publicity order
• Failure to comply with a remedial order or a
  publicity order is an offence punishable by a fine

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Sentencing guidelines consultation

• New offence, there fore guidelines required
• Consultation paper issued re corporate
  manslaughter and breaches of health and safety
  law resulting in death
• Focus on convictions for a criminal offence that
  properly reflects the seriousness of the worst
  instances of management failure causing death

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Seriousness

• Culpability
• Harm
• Aggravating and mitigating factors

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Aggravating factors - harm

• More than one person killed as a result of the
  offence
• Most serious offences where a number of deaths
  occur and that would have reasonably been
  foreseeable as a result of the breach
• Serious injury caused to other(s) in addition to
  the death(s)

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Aggravating factors - culpability

• Failure to act on advice, cautions or warnings
  from regulatory authorities or on previous
  similar incidents
• Failure to heed concerns of employees or others
• Operating without a required licence
• Financial or other inappropriate motives
• Corporate culture issues

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Mitigating factors

• Breach due to employee acting outside authority
  or failing in duties
• Ready cooperation with authorities (offender
  mitigation)
• Good previous safety record (offender mitigation)

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Aims of sentencing

• To reflect adequately the perception of
  seriousness of the offence
• Extra deterrent against unsafe working practices
• CJA 2003 punishment of offenders, reduction of
  crime via punitive and deterrent effect of fines
  and publicity orders, reform and rehabilitation
  of offenders via remedial orders, public
  protection via deterrence and remedial action.
  Reparation by offenders can be addressed by a
  remedial or compensation order

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Sanctions available - fines

• Maximum amount is unlimited
• Must reflect seriousness
• Financial circumstances of the offender relevant
• Aims to reflect serious concern at loss of life,
  ensure future compliance with safety standards,
  eliminate financial benefit

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Calculation of fines

• Current lack of consistency
• Optimal penalties model
• US Federal Sentencing Commission model
• Fine as percentage of turnover or profits

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Panels proposals

• Annual turnover most appropriate measure of an
  organisations ability to pay a fine
• Provisional starting point is 5 of average
  turnover for previous three years
• Normal range 2.5 - 10
• HSAWA deaths starting point 2.5, range 1 - 7.5
• Minimum fine may be appropriate

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Reasons for deviating

• The deterrence trap
• The spill-over effect
• Offenders providing public services

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Publicity orders

• Impact on public reputation effective deterrent
• Name and shame
• Extent of publicity
• Effect on overall sentence
• Starting point for financial penalty based on
  premise that a publicity order will be made in
  every case

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Remedial orders

• Unlikely to be used much in practise
• Imposed after consultation with regulatory body
• Highly case specific
• No effect on level of fine order is
  rehabilitative not punitive

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CBI position

• Sentencing based on turnover can produce
  disproportionate results and very low and very
  high turnover levels, so thresholds should be
  considered
• Sentencing guidelines should be restricted to
  corporate manslaughter only, not HSAWA offences
  also
• Public and private sector should be treated
  equally
• Regulatory Enforcement and Sanctions bill

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CBI position/2

• Dismissal of consideration of a good safety
  record is flawed
• Sentencing c.f. consequences v. degree of
  wrongdoing
• Eliminating financial benefits organisations do
  not carry out a cost benefit analysis before
  offending
• Starting points and ranges for fines strongly
  opposed

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CBI position/3

• No case for saying current levels of fine having
  no deterrent effect
• Tariff based system inappropriate judge should
  decide taking all circumstances into account
• Publicity orders should be a consistent
  approach with Regulatory Enforcement and
  Sanctions Bill

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Health and Safety (Offences) Bill 2007/8

• Raises maximum fine which lower courts can impose
  to 20,000 for most offences
• Makes a prison sentence an option for most health
  and safety offences in lower and higher courts
• Makes more offences triable either way
• C.f. Section 37 HSAWA
• Back in the House of Commons in June

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Questions