From my own experience and observations I have seen great strides made – significant ones in the last 10 years alone – to improve safety standards and help avoid such incidents that could lead to a death at a visitor attraction. However there is now, more than ever before, a greater degree of responsibility placed on the shoulders of the attractions owners, directors or senior managers, although the onus of proof in this area is far from straight forward. So what would the consequences be if a tragic accident occurred and a case of corporate manslaughter was proven?
Most recently the Sentencing Guidelines Council in the UK has published its Definitive Guideline on Corporate Manslaughter and Health and Safety Offences which cause death. When the Corporate Manslaughter Act finally received Royal Assent in July 2007 following seven years of waiting it was with the expectation of "Severe Penalties". It was suggested that an organisation guilty of the offence will be liable to an unlimited fine. The Governments advisory body, the Sentencing Advisory Panel, was recommending that any company found guilty of the new offence should be fined as much as 10% of its annual turnover!
The Council has now set out principles to guide courts in dealing with companies and organisations that cause death through a gross breach of care or where breach of health and safety requirements are a significant cause of the death. The advice is clear – punitive and significant fines should be imposed both to deter and to reflect public concern at avoidable loss of life.
Fines for companies and organisations found guilty of corporate manslaughter may be millions of pounds and should seldom be below £500, 000. For other health and safety offences that cause death, fines from £100, 000 up to hundreds of thousands of pounds should be imposed.
In deciding the level of fine, account must be taken of the financial circumstances of the offending organisation. In the guideline the Council emphasises the need for a court to have full, accurate and reliable information and details the method for ensuring that it is consistently provided.
When fixing the fine, a court should not be influenced by the impact on shareholders and directors, nor consider the costs of complying with other sanctions. However, the effect on the employment of the innocent may be relevant, as may the effect on provision of services to the public.
Factors increasing the seriousness of the offence identified by the Council include the foreseeability of serious injury, whether non-compliance was common and widespread within the organisation, and how far up the organisation responsibility for the breach went. Other factors that would aggravate the offence and raise the fine above the relevant minimum level include the number of deaths and serious injury caused, injury to vulnerable persons, failure to heed warnings or respond to near misses of a similar nature, cost-cutting, and deliberate failure to obtain or comply with relevant licences.
Publicity Orders – compelling companies and organisations to publish statements about their conviction for corporate manslaughter, details of the offence and the fine – are part of the penalty and should be imposed in virtually all cases. Council member and Vice President of the Court of Appeal (Criminal Division) Lord Justice Anthony Hughes said; "Fines cannot and do not attempt to value a human life – compensation will be assessed separately in these cases. These are serious offences and the fines must be punitive and substantial and have an impact on the company or organisation."
Such punitive measures could have a severe impact on any organisation or attraction but do these guidelines go far enough? What happened to the "10% of turnover" suggestion? What level of fine would be imposed in other countries and what more, if anything, could the industry do to ensure the further safety of both visitors and staff?