We reported in a previous bulletin that a third company, Lion Steel Limited, has now been convicted of corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007. Sentencing was passed on 20 July 2012 with a fine of £480,000 making it the largest fine to date for this relatively new offence, albeit still below the £500,000 starting point stipulated in guidance.
The case concerned a fall from height by an employee of Lion Steel while working on a roof. In the course of sentencing, Judge Gilbart directed certain criticisms towards the prosecution in respect that more than four years had passed between the employee’s death and the conclusion of trial. Although the last year of the delay was due to the difficulty in finding suitable court dates, the first three years’ delay was due to a “failure of the prosecuting authorities to act promptly”. While the delay was not accounted for in terms of mitigating the sentence passed, Judge Gilbart did allow the defendants a reduction in Crown claimed costs to account for the excessive time spent in preparation, some of which Judge Gilbart noted to be “unnecessary and irrelevant”. In the circumstances, Lion Steel were ordered to pay the Crown just 60% of its costs incurred until April 2012 (the date at which Lion Steel had first offered to plead guilty), payable within 2 years of sentencing. The Judge observed that whilst in this case there were individuals, as well as the corporate entity, facing prosecution, such a delay was not acceptable even in situations which only involved a corporate entity.
It remains to be seen whether a similar approach will be taken in respect of subsequent prosecutions, although the judgment is clearly of interest in respect of incidents of this nature, many of which take several years to come to trial. Delay may become even more pertinent following the introduction this month of the Fees for Intervention Scheme (FFI), whereby the HSE will charge companies whom they believe have been in material breach of health and safety regulation, from the time of the breach until Information is laid at court (or a report is sent to the Procurator Fiscal in Scotland), at an hourly rate of £124 per hour for all HSE time, with costs – such as expert costs – also being charged. Guidance on the FFI states that where there has been an acquittal following a prosecution, the HSE must repay any fees wholly related to the charges that did not result in a conviction. In such circumstances, delay in bringing the matter to court will have resulted in direct expenditure on the part of the affected company, covering HSE pre-litigation (i.e. investigation) costs – perhaps over a period of years, which falls to be repaid.