Chapter Three - sentencing PDF

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Chapter Three: Sentencing

3.1. Introduction The statutory offence is triable on indictment only and, by virtue of section 1(6), punishable by an unlimited fine.1 In February 2010, the Sentencing Guidelines Council (predecessor to the Sentencing Council) issued ‘definitive’ guidance on the assessment of financial penalties given to corporations convicted under the Act. 2 Its key takeaway was that fines were to be “punitive” and calculated to have a “sufficient” impact on the organisation.3 It is in this regard that the imposition of such fines is twofold. Firstly, it operates as a punitive measure where fines are calculated with the objective of deterrence. 4 Secondly, it serves well to reflect the public concern of preventable losses of life.5 It is appropriate, therefore, that whist evaluating the extent to which there has been an inconsistency in sentencing, these two themes will run through the chapter discussion. Indeed, whilst a clear reach towards some form of retributive justice, the guideline was later replaced by the New Sentencing Guidelines in February 2016.6 This framework was an attempt to remedy a number of inadequacies with regards to sentencing practices, which will later be discussed in this chapter. As Roper argues, though in its earlier stages, this new guidance signalled a some-what creditworthy evolvement. 7 This is to the extent that, by offering greater clarity on the core principles as to how fines are calculated, it suggests a reformed system of corporate culpability. The pending analysis will also find that – an issue will emerge throughout this research project In addition to these fines that serve as punishment and deterrence, the court may impose a publicity order demanding the publication of the corporation’s conviction in a specified manner. 8 Alternatively, remedial orders are available as a means of mitigating any specific failings involved in their breach which led to the victim’s death.9 Lastly, the imposition of a prosecution costs order may arise considerably where a trial has been held as the organisation pleaded not guilty.10 This must not be overlooked. After all, in R v CAV Aerospace Ltd. (unreported), the defendant was ordered by the court to pay £125,000 in prosecution costs.11 This marked a considerably higher fine than those imposed prior to the implementation of the New Sentencing Guidelines a year later in 2016. It is for these reasons that the author of the research project agrees with Roper’s statement. 12 There is an inherent inconsistency in the sentencing of corporations under the Act due to issues of proportionality and achieving punitive justice. This will ultimately feed into ideas for reform, where alternative methods remedying these issues will be considered. This chapter will be essentially divided into two parts however, pre and post- the new sentencing guidelines however, themes of proportionality, punitive justice and judicial discretion will prevail in all sections, including reform.

1 Corporate Manslaughter and Corporate Homicide Act 2007, s 1(6). 2 Sentencing Guidelines Council, ‘Corporate Manslaughter & Health and Safety Offences Causing Death: Definitive Guideline’ (Sentencing Guidelines Council, 9 February 2010) < https://www.sentencingcouncil.org.uk/wpcontent/uploads/web__guideline_on_corporate_manslaughter_accessible.pdf > accessed 16 June 2020. See also Criminal Justice Act 2003, s 172.

3 ibid 7. 4 Sentencing Council (n 4) 10. 5 Paul Almond and Sarah Clover, ‘Mediating Punitiveness: Understanding Public Attitudes towards Work-Related Fatality Cases’ (2010) 7 European Journal of Criminology 323.

6 Sentencing Council, ‘Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Definitive Guideline’ (Sentencing Council, 3 November 2015) < https://www.sentencingcouncil.org.uk/wp-content/uploads/Health-and-Safety-CorporateManslaughter-Food-Safety-and-Hygiene-definitive-guideline-Web.pdf > accessed 18 June 2020. 7 (n 1) 55 8 Corporate Manslaughter and Corporate Homicide Act 2007, s10, (n 2) 8. 9 Ibid s9; (n 2) 9. 10 11 12 Roper (n )

Intro summary of Roper: It is now easier to secure prosecutions under the Act, higher average fines are imposed and a wider spectrum of liability has been established in terms of company size. The issue is that conviction rates consistently fall short of what was predicted, there has been beguiling obfuscation in corporate manslaughter sentencing, and a trend of continued individual liability avoidance. Disappointingly, a palpable nexus has been revealed between a defendant’s ability to pay and the level of fine in a case. Early indications suggest that the new sentencing guidelines will mark a 3.2. Consistencies in Sentencing 3.2.1. Proportionality Summarise this: In the course of drafting such guidance, the Sentencing Guidelines Council rejected the proposition of identifying a fixed correlation between the fine and the cooperation’s turnover. 13 This was on the grounds that the position of the organisation – and, indeed the financial ramifications – would vary too much and leave corporate structures susceptible to manipulation. Precisely, the Sentencing Guidelines Council expressed fears that similar offences committed by organisations structured differently would result in significantly different fines.14 Nevertheless, Roper proposes that this operation in fact has a perverse effect.15 This is to the extent that perhaps the Sentencing Guidelines Council had tunnel vision in all matters of judicial discretion.16 Roper argues that although judicial discretion is not necessary a negative quality, the fines in the early cases varied to such a degree that it is virtually impossible to identity a pattern. 17 This, in turn, aligns very neatly with the author’s proposition that there is no consistency in sentencing. Indeed, this is to the extent that judicial discretion override principles of proportionality and punitive justice - a pure contradiction of its aims. It would seem that there is no method to the madness as seem the majority of sentences to date are below the recommended £500,000 level (see Figure 2 illustrating the conviction numbers). For instance, in Health and Safety Executive v Cheshire Gates & Automation Ltd (unreported), following a guilty plea the courts, the defendant was fined arguably an insulting £50,000.18 Despite only 10% of the recommended baseline, Judge David Stockdale in his judgement allowed the fine to be paid in £8,000 annual instalments. Granted other factors may have been taking into consideration such as the guilty plea, it is evident that as the defendant was a very small company, a proportionate small fine was felt to have sufficed. Accordingly, whilst the guidelines operate as general guidance for the courts, this reiterates the dangers of judicial discretion overriding the decision-making process with regards to sentencing. Therefore, to this extent Roper’s statement is correct about sentencing inconsistencies owing to the lack of strict guidelines. It is in this regard, the author proposes that judicial discretion causes the inconsistencies in sentencing. Criticism of the original sentencing guidelines was very much headed by Field. 19 In her highly critical review of the convictions to the date of publications, the author identifies clear inconsistencies in sentencing. While questions remain as to the deficiencies of the Act itself - at the very least, the invulnerability of larger organisations, she reviews that guidelines and considers the extent to which new proposes addressed the legislature’s “lack of bite”. R v Cotswold Geotechnical (Holdings) Ltd, the very first case under the statutory offence, established that – for both sentencing guidelines - the imposition of a financial penalty that essentially cause the company to be dissolved is an acceptable consequence. 20 However, despite this rhetoric of punitive

13 Sentencing Guidelines Council (n 2) 5. 14 ibid. 15 Roper (n ). 16 N Davies, ‘Sentencing Guidance: Corporate Manslaughter and Health and Safety Offences Causing Death – Maintaining the Status Quo?’ (2010) 5 The Criminal Law Review 402.

17 Roper (n ) 18 Manchester Crown Court, 17 November 2015 19 Sarah Field, ‘The Corporate Manslaughter and Homicide Act 2007 and the Sentencing Guidelines for Corporate Manslaughter: More Bark than Bite?’ (2015) 36 The Company Lawyer 327

20 [2011] EWCA Crim 1337.

justice, it is evident from sentences to date that the judiciary are reluctant to implement such “death sentences”. 21 This is to the extent that the courts seem to show a desire to protect the viability of the defendant corporation. Then again, in a practical sense yet by no means justifiable with regards to justice, one may propose that the courts are simply cautious of dangers of a company being unable to pay a fine was dissolved. 22 As Roper argues, a large fine could still serve to push the objectives of the guidelines despite this issues. Now for the meat of the section: The widespread criticism and commentary directed at the financial penalties in the first few cases marked a time for change for the Sentencing Council. Precisely, they proposed to introduce an approach to sentencing for health and safety offences, one that would closely align the means of the defendant and the severity of the offence with the final sentence.23 As the health and safety and corporate manslaughter offences were very similar, it was accepted to update both guidelines at the same instance to offer some consistency. Though the multiple-step sentencing process was retained, under the New Sentencing Guidelines a clearer correlation was establish between the corporation’s turnover and the base line for the assessment of fines. 24 It is appropriate, therefore, to delve deeper into this framework in order to better understand the consistencies – or rather, inconsistencies – in sentencing for this statutory offence. The first thing the courts take into consideration is the level of harm and culpability taken into account considerations such as the number of deaths and how far below the appropriate standard. This will determine category A and B (see Figure). The court then establishes the size of the organisation, by referring to its turnover. This is a crucial starting point for establishing the fine and hence the fine range. Of course there is an expectation, however, that there would be a significant increase in financial penalty for corporate manslaughter cases. A considerable development from the original sentencing guidelines is the for both medium and large organisations, the starting point is in excess of the original £500,000 benchmark. For instance, in the R. v CAV Aerospace Ltd case, perhaps – if this framework were to be followed – the fine would be above £20 million as opposed to a mere £600,000 in comparison. 25 It is appropriate, therefore, to consider the consistencies after the New Sentencing Guidelines were introduced. Although in its very early stages, the general consensus – and indeed, as Roper argues – is that while the new guidance marked higher fines that ever before, it is not as high as anticipated or desired (see Figure of conviction numbers after NSG, 19-25). Large Organisation Turnover more than £50 million Offence Category Starting Point A £7,500,000 B £5,000,000 Medium Organisation Turnover £10 million to £50 million Offence Category Starting Point A £3,000,000 B £2,000,000 Small Organisation Turnover £2 million to £10 million Offence Category Starting Point A £800,000 B £540,000

Category Range £4,800,000 - £20,000,000 £3,000,000 - £12,500,000

Category Range £1,800,000 - £7,500,000 £1,200,000 - £5,000,000

Category Range £540,000 - £2,800,000 £350,000 - £2,000,000

21 Roper (n ) 55. 22 James Gobert, ‘The Corporate Manslaughter and Corporate Homicide Act 2007 – Thirteen years in the making but was it worth the wait?’ (2008) 71 The Modern Law Review 413.

23 Sentencing Council (n ). 24 Ibid. 25 unreported 31 July 2015 (Central Crim Ct)

Micro Organisation Up to £2 million Offence Category A B

Starting Point £450,000 £300,000

Category Range £270,000 - £800,000 £180,000 - £540,000

Though within the range of fines previously imposed, the fines in all cases post-NSG was higher than the average (see Figure from Wikipedia). See table of fines which will be borrowed from Wikipedia. As demonstrated above, three defendants received a fine of £3,000, and most recently one of £255,000. Whilst at first sight £255,000 may appear insultingly low, it falls within the relevant category range as a microorganisation not yet acknowledged by Roper. Furthermore, the defendant pleaded guilty which led to the reduction in the fine. To this extent, there an inevitable and inherent variety in cases that will cause sentencing inconsistencies.

It has been observed that the £300,000 fine in the SR and RJ Brown case was high relative to the size of the offender and potentially indicative that the new guidelines may be resulting in larger fines than would previously have been the case.196 This contention is correct, notwithstanding, the court could have still been more punitive. The facts of the case indicated a high level of culpability, the company had no proper risk assessment or method statement for the work and there was an absence of safeguards that would have prevented the deceased falling to his death. Although the judge categorised the offence as category A, the fine imposed (even discounting the 25 per cent reduction for the guilty plea) was still below the indicative starting point of £450,000 and well below the top of the category range (£800,000). The courts appeared to be prepared to be more punitive, just not as punitive as they possibly could, that is until a landmark sentence was passed. The case of Health and Safety Executive v Martinisation (London) Ltd marked the first time a fine measured in millions (£1.2 million precisely) was implemented. 26 The company – classed as small organisation - had a turnover of £9.7 million. This demonstrates an interesting comparison against the previously largest fine was £700,000 against a medium-sized company with a turnover of £22 million.

judge viewed the level of culpability as high and therefore both corporate manslaughter offences were category A. The company had a poor health and safety track record, having received a number of enforcement notices from the HSE in the past, and had ignored advice to hire specialist equipment at a cost of £848 to lift the sofa. Despite the company already being in liquidation, the court was prepared to impose a fine significantly in excess of all preceding corporate manslaughter fines. The fine was well above the £800,000 starting point and within the fine range for a category A offence (£540,000 to £2.8 million). The court also imposed a publicity order and one of the company’s two directors was jailed for health and safety offences. The adherence of the court to the principles in the New Sentencing Guidelines and the imposition of a fine which is reflective of the gravity of the crimes committed in the Martinisation (London) Ltd case is to be commended. This case is the clearest indication since the introduction of the New Sentencing Guidelines of a paradigm shift in the sentencing of corporate manslaughter cases. There were some concerns raised about the potential hike in fines for corporate manslaughter under the New Sentencing Guidelines. Forlin queried whether it might cause very large organisations to consider relocating out of the jurisdiction.199 It is postulated that this is unlikely. The costs and inconvenience of relocating are always going to hugely outweigh the low risk of prosecution, something such companies would be aware of from their advisors. Other concerns raised by 26 (unreported) 19 May 2017 (Central Crim Ct)

Forlin though, such as the spectre of more contested, lengthier and complex trials, may yet prove to be valid.200 Early indications based on the recent cases suggest a significant proportion of defendants will continue to plead guilty. Field and Jones have also noted that there may be difficulties in ensuring the courts apply the New Sentencing Guidelines correctly. They argue that it will be a challenge for the courts to analyse detailed accounts and financial reports and to understand potentially complex group structures in order to categorise an organisation’s size.201 Again, we will have to wait and see if this proves to be the case. Although in its early stages, Roper is hopeful that the New Sentencing Guidelines will offer greater uniformity in sentencing.27 Regardless, there is of course methodological challenges in accurately estimating the quantity of fines that will be meted out in case law as it was only implemented in 2016. Thus far, the author of the research project optimistically agrees that one may expect a significant increase in the average fines in the future, better reflecting the severity of crime. Granted, if prosecutions are solely against micro-organisations, the courts will be far from the routine imposing of million pound fines. As Roper argues, it was never the intention of the New Sentencing Guidelines to attend the lack of prosecutions of large companies, and it would be inappropriate to do so. With regards to remedial, publicity and wider compensation orders, the Joint Committee admitted that they are not often used in practices.28 This is to the extent that it has not been used to date (Figure 2). Granted, a publicity order may cause more damage as opposed to a fine due to the implications on reputation as well as financial consequences on insurance premiums.29 Interestingly enough, despite both guidelines stating that a publicity order should be an ordinary feature in sentencing, only 32% of successfully prosecuted cases include a publicity order.30 A counter argument may be that corporate manslaughter cases – although only 25 – attract considerable media coverage where details are quick to be circulated in the public domain. However, a publicity order will provide an assurance that the circulating details are accurate and presented in an unbiased and non-partisan way. There have been a number of inconsistent reporting such as in Health and Safety Executive v Martinisation (London) Ltd31 – a considerably recent case - it was corrected stated that the defendant were payable to a fine of £1.2 million. It was falsely reported, however, that the company was ordered to pay £2.4 for two counts of the statutory offence as well as £650,000 for a health and safety breach. 32 This, therefore, reiterates the importance of publicity orders being implemented in accordance with these guidelines in order to provide structure and uniformity. With regards to the imposition of compensation orders, they also have not been made in any cases to date (Figure). The new guidelines recognise that the assessment of compensation will usually be complex, and often covered by insurance. 3.2.1. Quantitative Analysis

EXECUTIVE SUMMARY 1.1 This note considers the potential resource impacts of one of the Council’s key objectives: promoting consistency in sentencing. 1.2 Historical data shows 27 Roper (n ) 28 Reference properly: House of Commons Home Affairs and Work and Pensions Committees, Draft Corporate Manslaughter Bill, First Joint Report of Session 2005-2006, Volume 1: Report, HC 540-I (2005) at paras 271

29 David Ormerod and Richard Taylor, ‘The Corporate Manslaughter and Corporate Homicide Act 2007’ (2008) 8 Criminal Law Review 589. (page 610 if you want to specify if u referred to the source earlier). 30 R v Prince’s Sporting Club Ltd (unreported), Southwark Crown Court, 22 November 2013; R v Mobile Sweepers (Reading) Ltd (unreported), Winchester Crown Court, 26 February 2014; Health and Safety Executive v Peter Mawson Ltd (unreported), Preston Crown Court, 3 February 2015; Health and Safety Executive v Linley Developments Ltd (unreported), St Albans Crown Court, 24 September 2015; Health and Safety Executive v Baldwins Crane Hire Ltd (unreported), Preston Crown Court, 22 December 2015; Health and Safety Executive v Cheshire Gat...