Corporate manslaughter: Are bigger fines and custodial sentences really the answer?

I had never considered how the words of Gilbert and Sullivan operas had become embedded in our language, but had a faint recollection of school musical productions such as the Mikado, from which the words “let the punishment fit the crime” and “short sharp shock” echoed.
These phrases are now commonly linked to meting out punishment, stemming from government policy enacting the Criminal Justice Acts of 1982 and 1988.
However, these phrases also come to mind when considering the Sentencing Council’s proposed guidelines on fines for health and safety offences, including corporate manslaughter, which are expected to apply to all sentences handed down from January 2016…

As I have said from the beginning of the debate about extending the law of manslaughter to corporations, while higher fines for offences are needed, a wider cost/benefit assessment needs to be undertaken when assessing the use of very high fines. High fines signal society’s disapproval, particularly of corporate failures leading to death due to standards “falling far below” what would be expected. But one has to ask whether in a wider sense justice is really being served, even more so in hard-pressed public and private services, when these high fines mean that the organisations involved have to cut back on service delivery, investment and jobs.

Is training the answer?
In the event of a serious accident, the importance of businesses being able to demonstrate competent, visible, sustained and effective health and safety director leadership is key to avoid a “corporate behavior falling far below etc” charge. But this does not end with showing that board members have been trained. Indeed, if the directors of a company go on a course but fail to follow through on key learning points, then, in the event of a serious accident, they merely hand a golden rope to the prosecution with which to hang themselves. The leaders of the organisation have to show that they have all elements in place to sustain an effective health and safety risk management system – and that they have underpinned this with a lively and vigorous health and safety culture.

Learning from small failures
Directors need to be familiar with the hallmarks of the so-called “high reliability organisation”. A culture of strong organisational learning from small failures should form a basis for how to learn from big near-disasters when they occur. Near-disasters are the “gold dust” you need to gather as a business leader to avoid major failures. This is true, of course, for all aspects of operations – not just safety.
The biggest mistake any organisation can make, in my view, is to approach the health safety risk management leadership challenge in a “cookery book” fashion. Obviously directors need to understand health and safety law, the principles of safety in an organisational context and so on, but they also need to be creative and not just follow checklists. They need to accept that there is always a rhetoric/reality gap – there is always going to be a gap somewhere in organisations between safety theory espoused and actual safety practice. Leaders need to be able to sniff this out, and develop the capabilities of all their subordinates in this regard. They need to “get in among things”, “get back to the floor”, “talk to people at the sharp end” and “look and listen” (hands in pockets, mouth shut, eyes, ears and nostrils wide open).

Real justice
Personally, I think it is a great pity that the relatively blunt instrument of fines is used by the courts to reflect the legitimate anger of victims and families, rather than practical action. The corporation, as Thurlow said, has “no soul to damn; no body to kick”. I believe the public would be more satisfied that justice had been done if directors themselves were the focus of sentencing – with a strong emphasis, not so much on fines and custodial sentences (unless they were truly recalcitrant), but on retraining and supervision – if not community service linked to safety.

I have long argued that prosecutors and defending lawyers need to come together and identify independent experts outside HSE who could be appointed by the courts, as part of the sentencing package, to supervise sustainable safety management change in an offending organisation over a period of time, and to report back to the courts periodically on progress. HSE typically issues improvement notices in relation to immediate risk issues. They do not and cannot use their powers to enforce change in the safety culture of an organisation. But if the courts found the right persons (outside HSE and paid for by the offender) this could indeed give them the power to oversee the delivery of such change. Do the courts have the stomach for putting offending companies into such “special measures”?
As fines rise, it will be interesting to see how the arguments pan out. Key questions will remain: “Who is really being punished?” and “Is the stronger medicine really working?”