Corporate Manslaughter: A guide to sentencing

1. An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised –
   (a) cause a person’s death, and
   (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

An organisation will only be guilty of an offence if the way in which its activities are managed or organised by its senior managers is a substantial element of the breach.

There are three sanctions available to the court when sentencing for the new offence: an unlimited fine, a remedial order and a publicity order. The offence of corporate manslaughter is intended to reflect the gravity of the most serious instances of management failure resulting in death. The most important aim of sentencing is considered to be punishing the offending organisation in a way that reflects the serious public concern at the unnecessary loss of life.

Although the CMA applies only to organisations and restricts the ‘by gross negligence’ to individuals, it is designed to secure a conviction for a criminal offence in a wider range of situations, and reflect the seriousness of the worst instances of management failure causing death.

It is widely agreed that deterrent sentencing can be effective for corporate offenders, and the possibility of a conviction for the new offence is expected to provide a deterrence against unsafe working practices, in contrast to individual offenders. It is arguable that the CMA is only giving a different name to the charges against a company given the heavy penalties that can still be exacted by health and safety prosecutions. However, public concern about the nature of the crime is likely to be satisfied by the new powers.

The first prosecution under the CMA is underway and Cotswold Geotechnical Holdings will also be prosecuted under the Health and Safety Workers Act 1974 (HSWA). The company director is also being prosecuted on an individual basis for gross negligence manslaughter, which carries a maximum sentence of life imprisonment for the individual, and for breach of s.37 of the HSWA. This should act as a reminder that the new Act provides prosecutors with a wide range of charges in cases involving facilities.

The case makes it clear that the stakes for individual officers, managers and directors are higher than ever. Prosecutions will use all available laws at their disposal to secure convictions against both companies and individuals. This will inevitably result in prison sentences where fatalities occur.

Although individuals are more easily singled out in small companies, heavy fines based on total turnover, coupled with the damage to reputation of a manslaughter conviction and the possible naming and shaming of a publicity order ought to make even the most sceptical senior manager sit up and take notice.

For expert advice on Health & Safety matters, please contact Nicholas Lakeland (ncjl@silvermansherliker.co.uk) or Victoria Russell (vjr@silvermansherliker.co.uk) or call us on +44 (0)20 7749 2700.