Corporate manslaughter

Corporate Manslaughter and Corporate Homicide Act 2007, s.1
Effective from: 1 February 2016

Triable only on indictment
Maximum: unlimited fine
Offence range: £180,000 fine – £20 million fine

User guide for this offence


Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

Applicability

In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. It applies to all organisations, who are sentenced on or after 1 February 2016, regardless of the date of the offence.*

Section 125(1) of the Coroners and Justice Act 2009 provides that when sentencing offences committed after 6 April 2010:

“Every court –
(a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and

(b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so.”

Structure, ranges and starting points

For the purposes of section 125(3)–(4) of the Coroners and Justice Act 2009, the guideline specifies offence ranges – the range of sentences appropriate for each type of offence. Within each offence, the Council has specified a number of categories which reflect varying degrees of seriousness. The offence range is split into category ranges – sentences appropriate for each level of seriousness. The Council has also identified a starting point within each category.

Starting points define the position within a category range from which to start calculating the provisional sentence. The court should consider further features of the offence or the offender that warrant adjustment of the sentence within the range, including the aggravating and mitigating factors set out at step two. Starting points and ranges apply to all offenders, whether they have pleaded guilty or been convicted after trial. Credit for a guilty plea is taken into consideration only at step six in the decision making process, after the appropriate sentence has been identified.

*The maximum sentence that applies to an offence is the maximum that applied at the date of the offence.

Step 1 – Determining the seriousness of the offence

By definition, the harm and culpability involved in corporate manslaughter will be very serious. Every case will involve death and corporate fault at a high level. The court should assess factors affecting the seriousness of the offence within this context by asking:

(a) How foreseeable was serious injury?
Usually, the more foreseeable a serious injury was, the graver the offence. Failure to heed warnings or advice from the authorities, employees or others or to respond appropriately to ‘near misses’ arising in similar circumstances may be factors indicating greater foreseeability of serious injury.

(b) How far short of the appropriate standard did the offender fall?
Where an offender falls far short of the appropriate standard, the level of culpability is likely to be high. Lack of adherence to recognised standards in the industry or the inadequacy of training, supervision and reporting arrangements may be relevant factors to consider.

(c) How common is this kind of breach in this organisation?
How widespread was the non-compliance? Was it isolated in extent or, for example, indicative of a systematic departure from good practice across the offender’s operations or representative of systemic failings? Widespread non-compliance is likely to indicate a more serious offence. 

(d) Was there more than one death, or a high risk of further deaths, or serious personal injury in addition to death?
The greater the number of deaths, very serious personal injuries or people put at high risk of death, the more serious the offence.

  • Offence Category A: Where answers to questions (a)–(d) indicate a high level of harm or culpability within the context of offence
  • Offence Category B: Where answers to questions (a)–(d) indicate a lower level of culpability.

Step 2 – Starting point and category range

Having determined the offence category, the court should identify the relevant table for the offender from the tables below. There are tables for different sized organisations.

At step two, the court is required to focus on the organisation’s annual turnover or equivalent to reach a starting point for a fine. The court should then consider further adjustment within the category range for aggravating and mitigating features.

At step three, the court may be required to refer to other financial factors listed below to ensure that the proposed fine is proportionate.

Obtaining financial information

The offender is expected to provide comprehensive accounts for the last three years, to enable the court to make an accurate assessment of its financial status. In the absence of such disclosure, or where the court is not satisfied that it has been given sufficient reliable information, the court will be entitled to draw reasonable inferences as to the offender’s means from evidence it has heard and from all the circumstances of the case, which may include the inference that the offender can pay any fine.

Normally, only information relating to the organisation before the court will be relevant, unless it is demonstrated to the court that the resources of a linked organisation are available and can properly be taken into account.

  1. For companies: annual accounts. Particular attention should be paid to turnover; profit before tax; directors’ remuneration, loan accounts and pension provision; and assets as disclosed by the balance sheet. Most companies are required to file audited accounts at Companies House. Failure to produce relevant recent accounts on request may properly lead to the conclusion that the company can pay any appropriate fine.
  2. For partnerships: annual accounts. Particular attention should be paid to turnover; profit before tax; partners’ drawings, loan accounts and pension provision; assets as above. Limited liability partnerships (LLPs) may be required to file audited accounts with Companies House. If adequate accounts are not produced on request, see paragraph 1.
  3. For local authorities, fire authorities and similar public bodies: the Annual Revenue Budget (‘ARB’) is the equivalent of turnover and the best indication of the size of the organisation. It is unlikely to be necessary to analyse specific expenditure or reserves (where relevant) unless inappropriate expenditure is suggested.
  4. For health trusts: the independent regulator of NHS Foundation Trusts is Monitor. It publishes quarterly reports and annual figures for the financial strength and stability of trusts from which the annual income can be seen, available via www.monitor-nhsft.gov.uk. Detailed analysis of expenditure or reserves is unlikely to be called for.
  5. For charities: it will be appropriate to inspect annual audited accounts. Detailed analysis of expenditure or reserves is unlikely to be called for unless there is a suggestion of unusual or unnecessary expenditure.

 

Very large organisation
Where an offending organisation’s turnover or equivalent very greatly exceeds the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence.

 

Large organisation
Turnover more than £50 million
   
Offence category Starting point Category range
A £7,500,000 £4,800,000 – £20,000,000
B                                                                          £5,000,000    £3,000,000 – £12,500,000

 

Medium organisation
Turnover £10 million to £50 million
   
Offence category Starting point Category range
A  £3,000,000 £1,800,000 – £7,500,000
B £2,000,000 £1,200,000 – £5,000,000

 

Small organisation
Turnover £2 million to £10 million
   
Offence category Starting point Category range
A £800,000  £540,000 – £2,800,000
B £540,000 £350,000 – £2,000,000

 

Micro organisation
Turnover up to £2 million
   
Offence category Starting point Category range
A £450,000 £270,000 – £800,000
B £300,000  £180,000 – £540,000

 

The table below contains a non-exhaustive list of factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point.

Factors increasing seriousness

Statutory aggravating factors

  • Previous convictions,

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Guidance on the use of previous convictions

    The following guidance should be considered when seeking to determine the degree to which previous convictions should aggravate sentence:

    Section 143 of the Criminal Justice Act 2003 states that:

    In considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to—

    (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and

    (b) the time that has elapsed since the conviction.

    1. Previous convictions are considered at step two in the Council’s offence-specific guidelines.
    2. The primary significance of previous convictions (including convictions in other jurisdictions) is the extent to which they indicate trends in offending behaviour and possibly the offender’s response to earlier sentences.
    3. Previous convictions are normally relevant to the current offence when they are of a similar type.
    4. Previous convictions of a type different from the current offence may be relevant where they are an indication of persistent offending or escalation and/or a failure to comply with previous court orders.
    5. Numerous and frequent previous convictions might indicate an underlying problem (for example, an addiction) that could be addressed more effectively in the community and will not necessarily indicate that a custodial sentence is necessary.
    6. If the offender received a non-custodial disposal for the previous offence, a court should not necessarily move to a custodial sentence for the fresh offence.
    7. In cases involving significant persistent offending, the community and custody thresholds may be crossed even though the current offence normally warrants a lesser sentence. If a custodial sentence is imposed it should be proportionate and kept to the necessary minimum.
    8. The aggravating effect of relevant previous convictions reduces with the passage of time; older convictions are less relevant to the offender’s culpability for the current offence and less likely to be predictive of future offending.
    9. Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
    10. The court should consider the time gap since the previous conviction and the reason for it. Where there has been a significant gap between previous and current convictions or a reduction in the frequency of offending this may indicate that the offender has made attempts to desist from offending in which case the aggravating effect of the previous offending will diminish.
    11. Where the current offence is significantly less serious than the previous conviction (suggesting a decline in the gravity of offending), the previous conviction may carry less weight.
    12. When considering the totality of previous offending a court should take a rounded view of the previous crimes and not simply aggregate the individual offences.
    13. Where information is available on the context of previous offending this may assist the court in assessing the relevance of that prior offending to the current offence
    having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction

Other aggravating factors

  • Cost-cutting at the expense of safety
  • Deliberate concealment of illegal nature of activity
  • Breach of any court order
  • Obstruction of justice

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    The more sophisticated, extensive or persistent the actions after the event, the more likely it is to increase the seriousness of the offence.

    When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct.

    Where any such actions are the subject of separate charges, this should be taken into account when assessing totality.

     
  • Poor health and safety record
  • Falsification of documentation or licences
  • Deliberate failure to obtain or comply with relevant licences in order to avoid scrutiny by authorities
  • Offender exploited vulnerable victims

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • An offence is more serious if the victim is vulnerable because of personal circumstances such as (but not limited to) age, illness or disability (unless the vulnerability of the victim is an element of the offence).
    • Other factors such as the victim being isolated, incapacitated through drink or being in an unfamiliar situation may lead to a court considering that the offence is more serious.
    • The extent to which any vulnerability may impact on the sentence is a matter for the court to weigh up in each case.
    • Culpability will be increased if the offender targeted a victim because of an actual or perceived vulnerability.
    • Culpability will be increased if the victim is made vulnerable by the actions of the offender (such as a victim who has been intimidated or isolated by the offender).
    • Culpability is increased if an offender persisted in the offending once it was obvious that the victim was vulnerable (for example continuing to attack an injured victim).
    • The level of harm (physical, psychological or financial) is likely to be increased if the victim is vulnerable.
     

Factors reducing seriousness or reflecting mitigation

  • No previous convictions or no relevant/recent convictions

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    • First time offenders usually represent a lower risk of reoffending. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence.
    • Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending.
    • When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it. 
    • Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders).  In general the more serious the previous offending the longer it will retain relevance.
     
  • Evidence of steps taken to remedy problem
  • High level of co-operation with the investigation, beyond that which will always be expected

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    Assisting or cooperating with the investigation and /or making pre-court admissions may ease the effect on victims and witnesses and save valuable police time justifying a reduction in sentence (separate from any guilty plea reduction).

     
  • Good health and safety record
  • Effective health and safety procedures in place
  • Self-reporting, co-operation and acceptance of responsibility

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    Where an offender has self-reported to the authorities, particularly in circumstances where the offence may otherwise have gone undetected, this should reduce the sentence (separate from any guilty plea reduction).

     
  • Other events beyond the responsibility of the offender contributed to the death (however, actions of victims are unlikely to be considered contributory events. Offenders are required to protect workers or others who are neglectful of their own safety in a way which is reasonably foreseeable)

Steps 3 and 4

The court should ‘step back’, review and, if necessary, adjust the initial fine based on turnover to ensure that it fulfils the objectives of sentencing for these offences. The court may adjust the fine upwards or downwards, including outside the range.

Step 3 – Check whether the proposed fine based on turnover is proportionate to the overall means of the offender

General principles to follow in setting a fine

The court should finalise the appropriate level of fine in accordance with section 164 of the Criminal Justice Act 2003, which requires that the fine must reflect the seriousness of the offence and requires the court to take into account the financial circumstances of the offender.

Fines cannot and do not attempt to value a human life in money. The fine should meet the objectives of punishment, the reduction of offending through deterrence and removal of gain derived through the commission of the offence. The fine must be sufficiently substantial to have a real economic impact which will bring home to management and shareholders the need to achieve a safe environment for workers and members of the public affected by their activities.

Review of the fine based on turnover

The court should ‘step back’, review and, if necessary, adjust the initial fine reached at step two to ensure that it fulfils the general principles set out above. The court may adjust the fine upwards or downwards including outside of the range.

The court should examine the financial circumstances of the offender in the round to assess the economic realities of the organisation and the most efficacious way of giving effect to the purposes of sentencing.

In finalising the sentence, the court should have regard to the following factors:

  • The profitability of an organisation will be a relevant factor. If an organisation has a small profit margin relative to its turnover, downward adjustment may be needed. If it has a large profit margin, upward adjustment may be needed.
  • Any quantifiable economic benefit derived from the offence, including through avoided costs or operating savings, should normally be added to the fine arrived at in step two. Where this is not readily available, the court may draw on information available from enforcing authorities and others about general costs of operating within the law.
  • Whether the fine will have the effect of putting the offender out of business will be relevant; in some cases this may be an acceptable consequence.

In considering the ability of the offending organisation to pay any financial penalty, the court can take into account the power to allow time for payment or to order that the amount be paid in instalments, if necessary over a number of years.

Step 4 – Consider other factors that may warrant adjustment of the proposed fine

The court should consider any wider impacts of the fine within the organisation or on innocent third parties; such as (but not limited to):

  • impact of the fine on offender’s ability to improve conditions in the organisation to comply with the law;
  • impact of the fine on employment of staff, service users, customers and local economy (but not shareholders or directors)

Where the fine will fall on public or charitable bodies, the fine should normally be substantially reduced if the offending organisation is able to demonstrate the proposed fine would have a significant impact on the provision of their services

Step 5 – Consider any factors which indicate a reduction, such as assistance to the prosecution

The court should take into account sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.

Step 6 – Reduction for guilty pleas

The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the guideline for Reduction in Sentence for a Guilty Plea (where first hearing is on or after 1 June 2017, or first hearing before 1 June 2017).

Step 7 – Compensation and ancillary orders

In all cases, the court must consider whether to make ancillary orders. These may include:

Publicity Orders (Section 10 Corporate Manslaughter and Corporate Homicide Act 2007)

A publicity order should ordinarily be imposed in a case of corporate manslaughter. It may require publication in a specified manner of:

  1. the fact of conviction;
  2. specified particulars of the offence;
  3. the amount of any fine;
  4. the terms of any remedial order.

The object of a publicity order is deterrence and punishment.

  1. The order should specify with particularity the matters to be published in accordance with section 10(1). Special care should be taken with the terms of the particulars of the offence committed.
  2. The order should normally specify the place where public announcement is to be made, and consideration should be given to indicating the size of any notice or advertisement required. It should ordinarily 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. Consideration should be given to requiring a statement on the offender’s website. A newspaper announcement may be unnecessary if the proceedings are certain to receive news coverage in any event, but if an order requires publication in a newspaper it should specify the paper, the form of announcement to be made and the number of insertions required.
  3. (The prosecution should provide the court in advance of the sentencing hearing, and should serve on the offender, a draft of the form of order suggested and the judge should personally endorse the final form of the order.
  4. Consideration should be given to stipulating in the order that any comment placed by the offender alongside the required announcement should be separated from it and clearly identified as such.

A publicity order is part of the penalty. Any exceptional cost of compliance should be considered in fixing the fine. It is not, however, necessary to fix the fine first and then deduct the cost of compliance.

Remediation (Section 9 Corporate Manslaughter and Corporate Homicide Act 2007)

An offender ought by the time of sentencing to have remedied any specific failings involved in the offence and if it has not, will be deprived of significant mitigation.

If, however, it has not, a remedial order should be considered if it can be made sufficiently specific to be enforceable. The prosecution is required by section 9(2) Corporate Manslaughter and Corporate Homicide Act 2007 to give notice of the form of any such order sought, which can only be made on its application. The judge should personally endorse the final form of such an order.

The cost of compliance with such an order should not ordinarily be taken into account in fixing the fine; the order requires only what should already have been done.

Compensation

Where the offence has resulted in loss or damage, the court must consider whether to make a compensation order. The assessment of compensation in cases involving death or serious injury will usually be complex and will ordinarily be covered by insurance. In the great majority of cases the court should conclude that compensation should be dealt with in the civil courts, and should say that no order is made for that reason.

If compensation is awarded, priority should be given to the payment of compensation over payment of any other financial penalty where the means of the offender are limited.

Where the offender does not have sufficient means to pay the total financial penalty considered appropriate by the court, compensation and fine take priority over prosecution costs.

Step 8 – Totality principle

If sentencing an offender for more than one offence, consider whether the total sentence is just and proportionate to the offending behaviour in accordance with the Totality guideline.

Step 9 – Reasons

Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence.