The Importance of Sanctions The company as “economic man” Defining the objectives of prosecuting Tactical decisions The role of the prosecutor

The Objectives of Sentencing Retribution Restraint Rehabilitation General/Special Deterrence Education/Denunciation Applying Sentencing Theory to Companies

Tactical Issues Choice of defendant – Whom to prosecute? Choice of charge – For what offence to prosecute? Choice of court – In what court to prosecute?

Whom to prosecute? Individuals –Employees –Directors, officers and other corporate executives The company

Choice of charge Individual defs. –C.L./Stat. crime committed while engaged in the company’s business –Being an accessory to a corporate offence The company –Regulatory offence (e.g, HSE) –Criminal offence (corporate manslaughter) Does it matter?

Where to Prosecute Individuals –Magistrates Courts –Crown Court The company –Magistrates Courts –Crown Court

Sanctions (corporate officers and directors) Fine (general penalty for HSE conviction except in limited cases) Imprisonment Disqualification Community Service Order

Sanctions (cos.) -- HSE Magistrates’ Court –£20,000 Maximum Fine –Remedial order –Costs Crown Court –Unlimited Fine The Howe guidelines

The Howe Guidelines Generally - Gravity of Offence and Means of Offender Extent of breach/how far short of appropriate standard has company fallen? Deliberate breach with a view to profit? Degree of risk and extent of danger created Isolated lapse or continuing breach? Defendant’s resources? Effect of fine on business?

Aggravating Factors Death resulting in consequence of a breach A failure to heed past warnings A deliberate breach with a view to profit (or avoidance of loss)

Mitigating Factors A prompt admission of responsibility A timely plea of guilty Remedial measures taken after deficiencies drawn to company’s attention A previous good safety record

Post-Howe Issues The relevance of: –Profits (as measured by what?) –Profitability (the unprofitable company) –Turnover –Cash flow –Liquidity Determining a company’s financial status –Pre-sentence reports (who pays?) –The role of forensic accountants

Post- Howe Issues Changing standards versus changing attitudes Are fines the answer? –Spill-over effects –Passing on the cost of the fine –The wrong message Equity fines

The Brave New World of Sanctions –Remedial Orders –Limitations on scope of co.’s business (e.g., re govt. contracts) –Adverse Publicity orders –Community Service Orders –Closure/liquidation