Corporate Manslaughter Prosecutions – Where Are We Now? And Changes to Come
Statistics show that on average there are 156 workplace deaths each year. The good news is this is on the decline. So, is this down to the risk of a corporate manslaughter prosecution or just better management? Whilst hard to be sure, what is true is that we have only seen a dozen or so convictions for corporate manslaughter since its introduction in 2008.
Prosecution authorities - a quick reminder
Corporate manslaughter prosecutions are brought against the company concerned (not against individuals) by the Crown Prosecution Service (CPS) following a fatal accident at work. In accordance with the Work-Related Deaths Protocol work based fatalities are investigated jointly by the HSE and the Police. Where the Police believe there has been a “… serious breach of a duty care at senior level” they refer the case to a specialist team within the CPS to consider corporate manslaughter charges.
Alternatively, enforcing authorities (HSE or Local Authority) can bring a more ‘traditional’ Health & Safety prosecution of the employer/organisation or employees within it, under H&S legislation such as the Health and Safety at Work etc., Act 1974 and / or regulations deriving from the Act.
Given the lack of Corporate Manslaughter cases so far it's not a difficult leap to the conclusion that we are likely to see more actions brought by HSE and LA's than the CPS. As in the recent example of the tragic case involving a four year old boy who was fatally injured after a large free standing mirror fell onto him. The retailer was prosecuted under health & safety legislation, not the Corporate Manslaughter legislation and was fined £1.2 million.
When assessing the level of fine in fatal health and safety cases, Judges refer to sentencing guidelines which indicate an expected start point value. It is the then up to them to move up or down depending upon the mitigating and aggravating features of each case.
Currently the start point in cases of health and safety offences causing death is £100,000, whereas corporate manslaughter offences it is £500,000.
Of the dozen or so reported convictions under the Corporate Manslaughter legislation, the penalties have ranged from £8,000 to £600,000 and so rarely reach the expectation set in the guidelines. Interestingly, pleading guilty doesn’t seem to provide mitigation. For example, one company was convicted of corporate manslaughter and was fined a total of £200,000, having pleaded not guilty; but in the case of another, the company was fined £220,000 even though it had pleaded guilty.
Looking at the two extremes - In the case where the Company was fined £8,000 (plus £4,000 costs), the Company director, who was separately prosecuted but under the Health & Safety at Work etc Act 1974, was fined £183,000! Both the Company and the director pleaded guilty.
Contrast this with the case where the Company was fined £600,000 under Corporate Manslaughter. The Company was also convicted under the Health and Safety at Work etc., Act 1974 and was fined a further £400,000 and had to pay £125,000 prosecution costs.
New Sentencing Guidelines
First and foremost, it is hoped that you never have a workplace fatality. Having a robust approach to H&S including implementing appropriate policies, procedures, risk assessments etc, combined with appropriate training should minimise this risk.
That said, if you are unfortunately involved with corporate manslaughter, health and safety, or food safety offences the penalties are about to get bigger. New sentencing guidelines effective for any case sentenced on or after 1st February 2016 will mean significantly higher fines. The date of the event itself is irrelevant, it is when the sentence is pronounced that is important. Given the length of time such cases can take it could be that a higher fine could now be the result of something which occurred years ago.
The new guidelines are due to concerns that fines, particularly for larger organisations, have not fulfilled the purposes of sentencing, have not hit the owners and decisions makers of those companies and have sometimes failed to reflect the seriousness of the harm caused and/or the culpability of the offender. Consequently, the intention of the new guidelines is to have a “real economic impact” and, in some cases, to put a convicted organisation out of business. The new sentencing guidelines set out a more detailed fine calculation mechanism based on turnover which potentially means huge increases in fines for companies that are successfully prosecuted.
Convicted companies will be obliged to provide detailed financial information upon which the court can base its fine. If the information is not provided, the courts will infer that that Company can pay any level of fine. For the most serious forms of corporate manslaughter committed by large organisations, fines may be as great as £20 million!
That should focus the mind. If you think we can help with your health and safety and/or food safety requirements, please contact us.