Sentencing for Corporate Manslaughter and Health and Safety Offences Causing Death: Consultation Guideline
Thompsons Solicitors is uniquely placed to comment on this consultation guideline from the perspective of victims, their families and their trade unions.
As a trade union firm we deal with many of the workplace fatalities that take place each year as well as representing the families of many of the victims of occupational disease. We gave evidence to the Home Affairs / DWP select committee on the Corporate Manslaughter Bill and monitored the passage of the Bill through all the committee stages.
We have represented workers and families in nearly all the major disasters that have occurred over the years from Piper Alpha and Kings Cross to recent train crashes and the Avonmouth Bridge accident. We represent victims and families at inquests and advise both unions and their members during criminal proceedings. Following a successful judicial review by us of the CPS for not bringing manslaughter charges in a workplace accident a company owner received a 10 month jail sentence for manslaughter.
We believe that the aim of sentencing should be to reform, punish and deter. While this Guideline goes some way to doing this we have some areas of serious concern.
For ease, the points below follow the section structure of the Guideline.
Factors likely to affect seriousness (Section B of the Consultation Guideline)
While we welcome the suggestion in the consultation that the list of aggravating factors is not exhaustive, there are three vital omissions which should be included:
1. The failure of an organisation to involve workers and their representatives in health and safety.
2. A poor safety record.
3. Failure to have employers/public liability insurance.
1. Worker involvement in health and safety. Failure to promote and facilitate this should be an aggravating factor because of the important difference worker involvement is known to make to a workplace:
• It is well known and statistically proven that a workplace with a recognised trade union will be a safer environment with accident rates of on average 24% lower than non union workplaces (Litwin, Trade Unions and Industrial Injury in GB, LSE, 2000)
• Where employees are involved in H&S implementation, safety improves in a workplace.
• Thompsons knows from experience that unions are very experienced in H&S issues, train their members to properly understand the issues and employ or consult with experts on the subject.
• Some employers specifically seek to avoid engaging with a union representatives or to recognise a union specifically because the union will raise safety issues which will require expenditure by the company.
Alternatively, if involvement is not a specific aggravating factor the Guideline could expand aggravating factor (b) from the consultation to include failure to heed warnings or advice by workplace health and safety representatives.
2. A poor safety record.
The Guideline correctly identifies cost-cutting at the expense of safety as an aggravating factor. However, Thompsons believes that this Guideline should go further – the court should specifically consider the safety record of the company.
Sentencing for such serious offences should send a clear message to organisations that a poor safety record will lead to more serious penalties. The court should consider previous convictions, the number of reportable accidents and the type of accidents that have occurred over a period of, say, five years prior to the fatality resulting in the charges being brought.
Again we welcome the non-exhaustive nature of the proposed mitigating factors. However, we would also suggest that the following should be specifically included:
• whether the company operated a system of safety committees and if so if it did so properly; and
• whether the company provided a proper H&S training programme for workers.
Financial information; size and nature of organisation (Section C of the Consultation Guideline)/ Level of fines (Section D of the Consultation Guideline)
The decision not to link fines to turnover is a gross undermining of the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA). One of the main reasons that the legislation came into place was public disquiet at large companies receiving minimal or no sentences following deaths at work.
We do not agree that a fixed correlation might provide a perverse incentive to manipulation of corporate structure. That risk is outweighed by the greater risk that a failure to link fines to turnover means companies will not be properly penalised.
Not pegging fines to turnover sends out the wrong message. The courts should be able to levy a penalty based on 5-25% of turnover so that a clear deterrent message is sent out to organisations and fewer deaths at work occur in the future.
The alternative proposed by the Guideline of a minimum £500,000 fine is an insult to the loved ones left behind. While it is impossible to put a value on someone’s life, a fine sends a clear message to the guilty defendant that their negligence will not be tolerated.
A fine should both punish and deter. To put this into context £500,000 is the total amount that two firms were fined following the deaths of four motorway workers at Avonmouth Bridge. That was eight years ago. This proposal does not take us much further than the existing sentencing for health and safety offences.
We also believe that victim’s families should be consulted on the level of fines set.
Remedial Orders (Section H of the Consultation Guideline)
It is shocking that the Guideline makes such a scant reference to this potentially powerful tool to improve health and safety. The CMCHA gives virtually unlimited power to the courts to intervene in the operation of a company with regard to health and safety.
This is one of the most significant changes in health and safety penalties yet it warrants barely a mention.
Remedial orders should be considered in every case, even if only to decide it is not appropriate. The prosecution should be approached to consider whether it is appropriate to seek such an order and what the terms might be. The prosecution should liaise with bodies such as trades unions to consider whether there would be benefit in a remedial order.
The Guidelines duck the opportunity to give more specific guidance on the circumstances in which a remedial order could be used.
By the very nature of the offence there has been a failure at senior management level. Where this is a product compounded by the chain of command, or is due to the way in which the company is run or the way in which the directors and senior management organise themselves with regard to their safety obligations and/or the Institute of Directors guidance, or where there is a fundamental institutional and structural lack of direction on health and safety, then remedial orders should be considered in all cases to make the company operate in a safety competent manner.
In such circumstances the remedial order could involve training for directors and senior management, reorganisation of the structure of the company.