Sentencing guidelines published

On 9 February 2010, the Sentencing Guidelines Council published long awaited Guidelines as to the penalties that Judges should impose upon a University following its conviction for corporate manslaughter or for health and safety breaches which cause death. The Guidelines took effect from 15 February 2010 and they will be retrospective i.e. they will apply to all cases which are due to be sentenced after 15 February regardless of the date of the fatal incident.

The Guidelines will be applied by Judges only when sentencing a convicted University in cases where it has been proven that the offence was “a significant cause of death, not simply that death occurred”. The message in the Guidelines is clear: punitive and significant fines should be imposed in such cases, both as a deterrent and to reflect public disquiet at avoidable loss of life.

Unlimited fines
Following a work related death, a University will be the subject of a joint investigation between the Police and the Health and Safety Executive (“HSE”). If the Police subsequently decide to prosecute that University under the Corporate Manslaughter Act 2007 then the University will be liable, on conviction in the Crown Court, to pay an unlimited fine. If the Police decide not to pursue a corporate manslaughter prosecution then they will formally hand over the investigation to HSE. If HSE decide to prosecute the University for offences under the Health and Safety at Work etc Act 1974, (“HSWA”), on conviction in the Crown Court, the University will be liable to pay an unlimited fine.

The Guidelines provide that:

• fines on conviction for corporate manslaughter “will seldom be less than £500,000 and may be measured in millions of pounds”;
• fines on conviction for HSWA offences “will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more”.

Sentencing considerations
When considering an appropriate sentence in a work related death prosecution the Court will firstly need to consider the seriousness of the offence and, thereafter, identify any aggravating and/or mitigating features of the case. Previously, Judges have been referred to the well known principles set out in R v Howe Engineering Ltd. which have been adopted and, indeed, expanded upon in the Guidelines. When assessing the seriousness of the offence the Judge will have regard
to the following:

• How foreseeable was serious injury?
  • The more foreseeable it was, the graver the offence.
• How far short of the applicable standard did the defendant fall.
• How common is this kind of breach in this University.
• An isolated breach is likely to be significantly less serious than one which is endemic.
• How far up the in the University’s organisation does the breach go?
  • Usually, the higher up the responsibility for the breach, the more serious the offence.

Aggravating features will include:

• failure to heed warnings or advice
• whether from Regulators or employees, or near misses arising in similar circumstances;
• cost-cutting at the expense of safety;
• injury to vulnerable persons;
• multiple deaths or very grave injury in addition to death

Mitigating features will include:

• prompt acceptance of responsibility;
• a high level of co-operation with the investigation;
• genuine efforts to remedy the defect;
• a responsible attitude to health and safety.

The Guidelines acknowledge that in some cases the commission of an HSWA offence may arise as a result of the unauthorised act of an employee, with the liability of the University being established by reference to inadequate supervision or training. Interestingly, the Guidelines recognise that in such cases the culpability of the University may be low.

Having considered the seriousness of the offence together with any aggravating and/or mitigating features, the Judge will then consider the nature, financial organisation and resources of the convicted University. The Judge must take into account the full financial circumstances of the University, including its turnover, profit and assets. Early indications were that fines in such cases would be expressed as a percentage of a convicted University’s turnover or profit with average fines expected at between 2.5% and 10% of average annual turnover. However, the Guidelines rule out this approach and confirm that there should be no correlation between profit and fine albeit the Judge will consider both turnover and profit when gauging the resources of the University. Universities will be required to produce “full, accurate, and reliable accounting information” for scrutiny by the Judge preferably covering a three year period, including the year of the offence. Expert analysis of the accounts may be required by the prosecution in complex cases.

Before arriving at an appropriate fine the Judge must also consider the financial consequences of a fine upon the University such as the effect upon “employment of the innocent”. The Judge will consider any application to pay a fine by way of instalments on its merits.

Publicity Orders
On conviction for corporate manslaughter only, a University will ‘ordinarily’ be the subject of a Publicity Order requiring publication in a specified manner of: the fact of conviction; specified particulars of the offence; the amount of any fine; and the terms of any remedial order. The object of such an order is deterrence and punishment as it will inevitably impact upon the reputation of the University.

The Order will specify the place where the public announcement is to be made and will contain a provision designed to ensure that the conviction becomes known to: shareholders, in the case of companies; and local people in the case of public bodies. The Guidelines also suggest that consideration should be given to requiring a statement to be placed on the convicted University’s own website.

A newspaper announcement may be unnecessary if the proceedings have attracted media interest but if the Judge feels it necessary to make such an Order he/she should specify: which publication; the form of announcement to be made; and the number of insertions required.

Remedial Orders
A Remedial Order is available to the Judge both for corporate manslaughter and HSWA offences albeit is to be hoped that the convicted University will have remedied any deficiencies well in advance of a sentencing hearing thereby availing itself of significant mitigation.

Comment
The impact of a joint investigation and criminal prosecution upon an University and its people following a work related death cannot be underestimated. Joint investigations continue to be costly, lengthy, complex, and invasive and prosecutions for corporate manslaughter will, as a result of the 2007 Act, be more straightforward and have greater prospects of success. In the event of a conviction, an University will be liable to significantly higher fines than ever before.

As the Guidelines only relate to HSWA offences where it has been proven that the offence was a “significant cause” of death, Universities and their solicitors will need to scrutinise the HSE’s Prosecution Case Summary to ascertain whether this is, in fact, being alleged. Regrettably, the Guidelines do not define “significant cause” but we expect to see case law on this issue in early course. Such an allegation could, of course, be disputed by a convicted University. In these circumstances, the Court will hold a “Newton” Hearing where the Judge will consider the evidence and make a determination on this important sentencing issue. “Newton” Hearings can be costly for insurers but if such an allegation is successfully repudiated, this could make a significant difference to the level of fine paid by the University.

Universities who fail to get their health and safety right will be held to account and punished severely. Universities are advised to review their existing health and safety arrangements and to ensure that they have in place a properly structured system which is actively enforced and monitored/reviewed on an ongoing basis. Health and safety must be ingrained in all aspects of the University’s business.

The Guidelines are available on the Sentencing Guidelines website at www.sentencingguidelines.gov.uk

For further information, please contact Claire Rawle, a Partner at Morgan Cole who specialises in this area. She can be reach on 029 2038 5532 or by email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it