A consultation on whether corporate manslaughter should have tougher sentencing has just closed. Law At Work’s Health & Safety manager Steve Ashton looks at proposed sentencing changes and what they could mean to senior management teams:

Determining what a life is worth may seem an impossible question, but it is one that the Sentencing Council are currently trying to answer. They have been consulting on the introduction of tougher penalties to be available for judges dealing with corporate manslaughter, as well as breaches of health and safety and food safety requirements. If someone is killed, injured or could have been as a result of the gross negligence of their employers – what do you think the penalty should be?

For many years, major projects in the transport arena have adopted a figure for ‘Value of Preventing a Fatality’ (VPF) which is intended to help bosses decide if particular projects should go ahead depending on the potential cost implications if a worker was to be killed during the process. The penalties incurred by the courts have often been very much lower than the accepted VPF figures, which could give the impression that the courts placed a lower value on life.

Calculating a cost attached to a life seems cold blooded and harsh, even inhumane, but businesses may reasonably assess how much they should do, and spend, to ensure safety when the standard required in law is ‘so far as is reasonably practicable’.

In order for sentences to be more than merely a slap on the wrist, the proposed increases are aimed at ensuring directors and shareholders take on board that knowingly breaching health and safety rules is not an acceptable or commercially sensible way to deliver business.

The consultation is expected to result in a clear set of guidelines for the courts in England and Wales, this will provide a framework where similar breaches result in similar fines. In Scotland, the courts are not bound by the same Sentencing Council guidelines, but they do tend to follow similar principles and resulting sentencing.

There will be a series of factors judges need to take into account when deciding on the penalty to be imposed following a guilty verdict. They will be expected to consider the means of the business, the extent of the breach e.g. how far below acceptable standards was the employer, and the severity or consequences of the outcome. A company that knowingly acts in a dangerous way can expect a higher penalty than one where standards are generally high but perhaps have slipped on one occasion. An unforeseen chain of events leading to an unusual accident will be considered less blameworthy than an accident that follows other similar accidents where nothing has been done to prevent recurrence.

Businesses need to ensure their system for responding to incidents, including near misses, is robust, and that actions identified as necessary from any investigations are completed within a reasonable timescale or they can expect harsher penalties in the event that a recurring incident lands them in court.

Last year, some very large fines were upheld on appeal in the High Court, including against Sellafield and Network Rail who had to pay out £700,000 and £500,000 respectively. If the Sentencing Council is successful in their proposed changes, it is likely that these larger fines will be handed out much more often to businesses in the UK.