Brake’s response to the Sentencing Advisory Panel’s consultation on:
Sentencing for Corporate Manslaughter
January 2008
About Brake
Brake is a national road safety charity, dedicated to stopping deaths and injuries on roads and caring for people bereaved and affected by road crashes.
Brake carries out research into road users’ attitudes on various aspects of road safety, including traffic law and its enforcement.At-work driver safety is one of Brake’s primary concerns - Brake works closely with fleet managers and drivers through its Fleet Safety Forum and regularly campaigns for changes to laws affecting at-work drivers, which will benefit road safety.
General comments
In 2006, 858 people were killed and 6,622 were seriously injured in crashes involving at-work drivers.[1]Brake welcomes the Corporate Manslaughter Act as a way of punishing the most serious offences by organisations whose actions lead to a death on the road or in a vehicle.
Answers to specific questions
Question 1
Do you agree with the approach to the assessment of seriousness?
Yes.
Question 2
Is each of the above aggravating and mitigating factors relevant to sentencing for a) an offence of corporate manslaughter and b) an offence under the HSWA involving death? Are there are any other factors which may aggravate or mitigate either or both of these types of offence?
Brake agrees that the aggravating and mitigating factors mentioned are relevant for both an offence of corporate manslaughter and an offence under the HSWA involving death, but recommends the following changes:
The aggravating factor of ‘corporate culture encouraging or producing tolerance of breach of duty’ should be extended to include not having appropriate procedures in place to encourage a duty of care. Organisations should be actively managing risk and taking steps to promote safe driving practices by having comprehensive safety management systems in place. Failure to have such systems in place should be an aggravating factor.
Brake is concerned that ‘ready cooperation with authorities’ is listed as a mitigating factor. Although it recognises the importance of giving organisations an incentive to cooperate with authorities, this ought to be the expected norm, rather than being viewed as a bonus that reduces an organisation’s sentence. Failing to cooperate with authorities should be an aggravating factor, rather than ready cooperation with authorities being a mitigating factor. This way, cooperation is the expected norm, and failure to cooperate is punished.
The mitigating factor of a ‘good previous safety record’ is concerning, A company may have been getting away with the breach of duty of care for many years, and may have a good safety record because they have been lucky enough not be caught. A poor safety record should be an aggravating factor, rather than a good safety record being a mitigating factor. This way, a good safety record is the expected norm, and a poor safety record is punished.
Question 3
What do you consider should be the main aim of sentencing an organisation for an offence of corporate manslaughter or an offence under the HSWA involving death? Should there be any difference between the two types of offence and, if so, why?
Brake’s primary aim is to stop death and injury on the road. With a view to stopping road deaths that result from heath and safety offences or corporate manslaughter, and because of the huge potential for large organisations to cause harm to the public, Brake believes protection of the public through deterrence and remedial action should be the main aim of sentencing an organisation for an offence. However, Brake’s work with people who have been bereaved and injured through road crashes tells us that reparation to those affected by the offence can be absolutely vital. In addition to suffering an unimaginably devastating loss, families who have been bereavedmay find their financial position hasworsened as a result of the death. Compensation is often absolutely essential to allow people to continue their lives without financial problems on top of their grief. Brake can see no reason why there should be any difference in the aims of sentencing between the two offences. Both exist to protect the public from dangers posed by poor safety practices by organisations.
Question 4
Do you agree that the aims of the fine should be to ensure future safety and reflect serious concern at the unnecessary loss of life? Should there be any difference in aim when imposing a fine for corporate manslaughter or for an offence under the HSWA involving death?
The aims of a fine should be to reflect, as far as is possible, the devastating nature of an unnecessary and untimely death, and the impact this has on the family and friends of the person who has died, and, through deterrence and remedial action, ensure future safety. Brake can see no reason why there should be any difference in the aims of sentencing between the two offences.
Question 5
Do you agree that a fine imposed for an offence of corporate manslaughter or an offence under the HSWA involving death should aim to eliminate any financial benefit resulting from the offence? If so, what information would be necessary, and how could this be obtained?
Brake agrees that it is essential that the fine imposed for an offence of corporate manslaughter or an offence under the HSWA should eliminate any financial benefit resulting from the offence. If this does not occur, there is a strong financial incentive for organisations to cut corners and to put drivers, employees and the public at risk.
It should not be considered a punishment to take away a benefit that was gained illegally. Therefore, any fines should be over and above any financial benefits resulting from the offence. One possible way of ensuring this is to have a two stage fine. Stage one would be to order payment to cancel out all financial gain resulting from the breach. Stage two would be a fine constituting punishment for the offence.
An independent auditor should assess what financial benefit has arisen as the result of a breach of an offence.
Question 6
Do you agree with the Panel’s proposed starting points and ranges for a) offences of corporate manslaughter and b) offences under the HSWA involving death? If not, what alternative approach would you suggest for the fining of organisations for these offences?
The starting points and ranges for both corporate manslaughter and HSWA offences involving death are far too low, do not reflect the severity of the crime, and would act as little disincentive to many organisations.
The proposed maximum fine for the new offence of Corporate Manslaughter (10% of the annual turnover of the organisation) is equivalent to the maximum fine for organisations thatbreak European competition law.Yet these two offences are incomparable, with the latter involving the death of a person and the subsequent devastation of family and friends, and the former being little more than an administrative offence. This indicates that the starting points and ranges suggested for the offence of Corporate Manslaughter are far too low and should be increased to reflect the severity of the crime and ensure the punishment achieves its aim of deterrence.
Question 7
Do you agree that it is for the prosecution and defence to raise issues of profitability and liquidity? What impact should these factors have on the calculation of the fine?
Brake would agree that it is for the prosecution and defence to raise issues of profitability and liquidity. However, the impact of these factors should be limited. The court’s priority should not be to ensure the health of a business. As a general principle the court should not reduce the fine it would usually give to prevent a company going out of business. The court’s first priority is to award a just punishment that reflects the crime and acts as a disincentive.
Question 8
Do you consider that there should be a minimum fine for a) offences of corporate manslaughter and b) offences under the HSWA involving death? If so, what amount do you think would be appropriate?
Given that fines for offences under HSWA involving death are already often pitifully low[2], it would be an outrage if the new sentencing guidelines meant that offenders with low turnovers received smaller fines than they would otherwise have done. For this reason, there should be a minimum fine both for offences of corporate manslaughter and offences under the HSWA.
Question 9
Do you consider that a report on each offender should be prepared for the court with full details of financial status? If so, how would this be provided?
Yes. A report with full details of financial status is important as it will help judges to determine an appropriate sentence. The report should be prepared by an independent auditor.
Question 10
Do you agree with the Panel’s approach to the impact of the fine on the offender, its employees, customers and shareholders? If not, why not?
Brake agrees that the ‘spill-over’ effects of a fine on employees and customers should be considered, and should, in some cases affect the level of fine awarded. The main aim of fining organisations is to protect the public. It would therefore be an unwelcome side-effect if the public were made to suffer in other ways as the result of a fine. However, it is essential that a balance is drawn between giving a fine that will have a genuine impact on the organisation, and protecting employees and customers from adverse effects. The priority should be to fine the organisation a fitting amount to reflect the nature of the crime, and ensure future safety through deterrence and remedial action.
Question 11
Do you agree that the court should treat offenders consistently, whether or not they are publicly funded or providing a public service? If not, how do you think that considerations specific to public bodies should be reflected?
It is important that public bodies are not exempt from the law and this is particularly important for offences which have a direct effect on public safety. Since public bodies are treated consistently with non-public bodies for other criminal offences, it seems reasonable that they should be treated consistently for the offence of Corporate Manslaughter.
Question 12
Do you agree that, when sentencing an organisation for an offence of corporate manslaughter, the court should impose a publicity order?
Yes. The court should always impose a publicity order for an offence of corporate manslaughter. Publicity orders have the potential to have a greater impact on larger organisations than a fine, so can add to the deterrent value of the offence.Making the organisation’s customer-base aware of the offence committed creates added pressure to ensure standards remain high and that a similar offence isnot committed in the future.
Question 13
What should the extent of the publicity be and how (if at all) will this differ between offences of corporate manslaughter?
Brake agrees that as a minimum, a publicity order should require a notice in either regional or national media (depending on the size of the organisation and its geographical reach), and all stakeholders (e.g. clients, customers, shareholders, associates)should be informed. This should be a minimum, and in cases where the company is so large that a fine is unlikely to have any real deterrent value, the extent of the publicity order should be greater, with more publicityin a wider range of publications and broadcast media.
Question 14
Do you agree that the making of a publicity order should not lead to a reduction in the level of fine imposed on an organisation for an offence of corporate manslaughter?
Yes. It is essential that the publicity order is an additional sanction. The combined deterrent effect of afine and a publicity order is stronger than that of just a publicity order. A publicity order has the added impact of affecting an organisation’s reputation, creating added pressure to ensure standards remain high and that a similar offence is not committed in the future. This should be treated as a separate punishment to a financial penalty in order to create maximum deterrence.
Question 15
Do you agree that the making of a remedial order should not lead to a reduction in the level of fine imposed on an organisation for an offence of corporate manslaughter or an offence under the HSWA involving death?
Yes. It is essential that the remedial order is an additional sanction. The combined deterrent effect of a fine and a remedial order is stronger than that of just a publicity order. The remedial order is an important process for ensuring the offence does not happen again, and should be seen as a means of correcting what was wrong within the organisation. As such, it is not a punishment in the true sense, so should have no impact upon the level of fine awarded.
For more information, please contact Rachel Burr, Brake’s campaigns officer, on 01484 553085
1
[1]Figures obtained by Brake from the Department for Transport in 2007
[2]For details of average penalties for Health and Safety offences, see Health and Safety Offences and Penalties 2004/2005, Health and Safety Executive (2006)