Revised guidelines for the sentencing of corporate manslaughter and health and safety offences will be published shortly, but does the recent case against Hugo Boss UK give retailers a sign of what to expect?
On the 4th September, HHJ Peter Ross sentenced Hugo Boss UK Ltd at Oxford Crown Court to a financial penalty of £1.2 million pounds - a substantially higher penalty than we have seen before in retail cases. The case involved the Hugo Boss store at Bicester Outlet Village, where a mirror which was left free standing with no fixings fell on a four year old boy, causing fatal head injuries. The company pleaded guilty to on offence of failing to discharge a duty under Section 3 of the Health and Safety at Work Act 1974, and a breach of Management of Health and Safety at Work Regulations 1999, Regulation 3.
When looking at the consultation guidelines this amount of financial penalty correlates with 'very high culpability' and 'harm level 1', which can be defined as a flagrant disregard of the law and causing death. When looking to the profit of Hugo Boss UK the company fall within the medium size corporation category. All these things considered, the starting point for financial penalties would hypothetically have fallen at £1.6 million with a range from £1 million to £4 million. While the company would have been given some credit for a guilty plea, this helps to build a picture of how the sentence was derived and perhaps what sort of sentences we can expect to see in the future.
Sentencing Guidelines for many offences have moved to prescriptive formats whereby 'harm' and 'culpability' are assessed, and a matrix of sentencing options is then formulated. There has been much debate as to whether regulatory offences could be given such prescriptive guidance's. In July 2014 the revised 'Environmental Offences Guidelines' were implemented, which sought to bring in a matrix style sentencing table, similar to that which is suggested in the consultation for the 'Corporate Manslaughter, Health & Safety offence and Food Hygiene Offences'. Assessing the 'harm' and 'culpability' of offences first and then categorising dependent upon the size of the organisation.
Although there has been a 'means assessment' completed in the past when sentencing these types of offences, there has never been a prescribed amount of fine depending upon that calculation. This has always been left to be determined by the judge dealing with the case. The view appears to be within the consultation that there are too many inconsistent sentences, to which a matrix system would eradicate.
This will have a great effect on retailers especially those that have high turnovers. It is likely that there will be a matrix in which 'harm' and 'culpability' are decided, and then dependent upon the size of the organisation, the financial penalty will be determined. This case is perhaps a warning to all, that the sentences are likely to be a lot higher than previously seen, and far more consistent. A prescriptive approach looks set to be implemented, and will fall in line with the vast majority of other sentencing guidelines already in force.