In the event that a fatality occurs, those involved in running a business can even face the purely criminal consequences of potential manslaughter charges. The Sentencing Council has just published its first definitive Manslaughter Sentencing Guidelines that cover ‘gross negligence manslaughter’ – this is the relevant type of manslaughter offence that could come into play in such circumstances. The guidelines take effect on 1 November 2018.
The guidelines outline levels of culpability that will have a direct bearing on sentence. The range goes from ‘very high culpability’ to ‘low culpability’, with the difference in those levels being reflected in potential sentencing ranges of 10 to 18 years and one to four years respectively.
Examples of pertinent factors in the culpability determination are, on one hand, ignoring safety concerns for financial gain (high culpability) and a temporary lapse in an otherwise safe system (low culpability).
Bearing in mind that a prosecution for gross negligence manslaughter will normally run alongside prosecution for health and safety offences, the new guidelines provide a timely reminder of the need to ensure that all health and safety systems, policies, procedures and training are taken seriously and implemented very carefully indeed. While the development and implementation of suitably robust systems is undoubtedly costly – not to mention the costs of auditing to ensure compliance at site level – those costs need to be weighed against the costs of getting it wrong, including the sorts of sentences mentioned earlier.
While a prosecution for gross negligence manslaughter may be relatively rare and only arise in the most serious cases, a business faced with a fatality may find itself involved in a coroner’s inquest, a lengthy, time-consuming criminal and health and safety investigation, with even the possibility of a licence review to cap it all off.
The sentencing guidelines that came into play a couple of years ago in relation to a range of safety offences are being followed by the courts with defendant companies now facing fines that can often be in excess of 10 times as much as they would have been prior to those guidelines coming into effect. It goes without saying that the financial impact upon the company can be crippling and, at best, set it back years in terms of profitability.
Beyond all of that there is the extremely adverse publicity that inevitably flows from the various limbs of the resulting investigations.