On 19 June 2014 MNS Mining was found not guilty of corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007, following a three month trial at Swansea Crown Court. The mine manager, Malcolm Fyfield, employed by MNS was found not guilty of gross negligence manslaughter. The company was on trial for four offences of corporate manslaughter and the mine manager with four offences of manslaughter.
The case arose as a result of a tragic accident on 15 September 2011 in which four workers drowned when the mine they were working in flooded. The mine was a small drift mine and in order to change the direction the mine was being worked in, there was a requirement for a ventilation and additional egress route to be created. On 14 September, the day before the incident, the mine manager instructed the men to break through a wall into old workings, by firing explosives, a method known as shot firing. It was the crown’s case that on the other side of that wall there was already over 600,000 gallons of water, the equivalent to 1.5 Olympic sized swimming pools.
It was the crown’s case that the incident occurred as a result of the mine manager’s “gross negligence” which arose when he instructed the mine workers to breach the wall within the mine. They further stated that the company was guilty of corporate manslaughter on the basis of the mine manager’s alleged manslaughter. The case against the company focussed entirely on this premise; the company had duties which were breached as a result of senior management’s failure, and it followed that the company was therefore guilty.
During the course of the trial, the crown led evidence from 45 witnesses speaking to fact, as well as experts. The defendants called just two witnesses – the mine manager gave evidence on his own behalf and a geological expert gave evidence on behalf of the company. During the crown-led evidence, 12 – 15 years of the mine’s history was explored, and evidence was heard from mine surveyors, mine inspectors, HSE inspectors and water calculation experts.
In essence, the argument being made by the crown was that it was known how much water had been released in the incident into the mine where the workers were; that water came from an area above the break through point; that area was marked on the mine plans with a water line and the words “underground water”; those plans were available at the time of the incident; and post-incident calculations showed there was capacity for the water that came through in the incident to fit into that particular area of the mine. Moreover, the area surrounding the workings containing the “underground water” was marked on the mine plans by green hatching and this highlighted a cautionary zone. When mining into a cautionary zone, it was submitted that extreme care must be taken, as required by mining regulations, and that involved inspection and approval being sought from the inspectorate prior to work being carried out. It was the crown case that that wasn’t done, and the mine manager was therefore grossly negligent.
In considering the level of negligence on the part of the mine manager, the crown argued that on the basis of the evidence, anyone could see that in carrying out the work that the mine manager instructed, there was a large quantity of water in the area designated on the plan, that it created a massive risk to life and that was an unacceptable risk to take. Further, it was argued that mining regulations stipulate that the men must be 100m back from the area being shot fired. Although the men were in an area protected from the ordinary risks associated with shot firing, they were not in an area of safety to be protected from the massive inrush of water that eventuated.
Analysis of crown case
On the face of it, the crown’s case was unanswerable. It appeared there was compelling evidence of the presence of water, there was a cautionary zone highlighted on mine plans, no approval had been sought from the inspectorate by the mine manager, as is required, and there was a rush of water causing death.
However the evidence produced on paper typically does not amount to the totality of the evidence that is to be given by witnesses. A case may look compelling; however it can ultimately be undermined by the reality, when it is brought out in cross examination.
As is required in criminal cases, statements are served during disclosure, which support the Crown’s case. These statements are prepared based on the Police and HSE’s questions and generally speaking, it is inevitable that they are going to be limited in content. Questions which may be relevant to the defence of the case may not be asked by the investigating officers. There may be more information available from that witness but it is simply the case that they have not been asked a particular question.
The defence challenge
By way of example, a former mine manager, with over 18 years of experience at the mine in question was called by the crown to give evidence during the trial. He gave evidence to the effect that in the course of his work in the mine, he knew that water would come into the mine and congregate in certain areas designated on the plan designated by the blue water lines. As such, he put in place a pipe, to carry the water away when it reached the blue line on the plan, removing any overflow. That meant that everything below the blue line on the map, symbolised water.
At interview, the mine plan was put to him. The former manager marked on the plan the start and finish points he took when carrying out inspections, in order to check ventilation. However prior to the Trial, he had never been asked what route he took in order to get from start to finish. He was first asked this question in cross examination, and so he drew the route he took. It transpired that the route took him half way through the area marked with the words “underground water” on the plan, the area which it was the crown’s case, was the location of water. The witness advised that he did not know what the blue line (said by the crown to show the water line) was intended to represent.
The results of this line of cross examination seriously undermined the crown’s case. If the former mine manager’s evidence was to be accepted, it could no longer be stated as the crown alleged, that the entire area outlined on the map was full of water. Therefore, the amount of water the crown stated was present could not have fitted into the space. As such, it could no longer be said that the quantity of water released, was in place for a long time before the incident. This was a critical part of the crown’s case.
The defence case
The defendant mine manager’s position had always been that he carried out inspections three times before the incident, the final inspection being on the day before the incident, and there was no evidence of water. It was on that basis of those inspections that he had given the instruction to break through the wall. The defence case was therefore that the water must have arrived after the mine manager’s inspection; at most, it had been there for 16 hours. However, the crown’s case was that the mine manager was either lying, or he was seriously mistaken. They considered it to be too much of a coincidence that a massive body of water could congregate in that time.
Superficially, it did appear to be a massive coincidence. However, the evidence that had been heard from the former mine manager (if accepted) meant that the water which was released into the mine, could not all have fitted into the area designated on the plan with the words “underground water”. As such, it must have been the case that there was a “coincidence” at some stage and at least some of the water, arrived just before the incident.
In support of its case, that the water that came through in the inrush was not present when the mine manager said he conducted his inspections but congregated in the hours following, the defence relied on the company’s independent expert witness. The expert was a geologist who could speak to how the water could have gathered in the time frame the defence were suggesting, thereby bolstering the credibility of the mine manager’s evidence, that he had carried out the inspections as he said. The defence argued that the mine manager’s evidence should be believed, that he was not mistaken. The crown did not have an expert witness in a position to challenge the evidence of the geologist. They further relied only on a limited examination of areas of the mine where the water had gathered.
Further it was submitted for the defence that there was no direct evidence to rebut the mine manager; and there was direct evidence that previous managers had given evidence about mining into the areas supposedly marked as a cautionary zone and so it could not be said it was grossly negligent to mine into the area.
In light of the defence submissions and the evidence that had emerged, when it came to directing the jury, the judge said there was one question that must be addressed first, before looking at the case any further. If the prosecution had not convinced the jury that the mining manager did not carry out those inspections in the area he described, then they could not be sure that a large volume of water accumulated in the area behind the breach point for a significant period of time before the incident. If that was the case, then both the company and the individual could not be found guilty of the eight charges laid before them, and there would be no need to consider the case any further. The other questions for the jury would only have to be answered if they answered this first question in the crown’s favour.
It would appear that the jury answered that question in favour of the defence. In week 13 at Swansea Crown Court, the jury left the court room at approximately 12.45pm to consider the case. Taking just 15 minutes to deliberate, followed by a break for lunch, they returned at 2.35pm to deliver not guilty verdicts in respect of all eight charges.
This case highlights that the importance of the witness stand must not be under-estimated. It is particularly true of this case, where there were no opportunities for the defence expert to inspect the mine, and witness evidence was the main opportunity to examine this area. As was discovered, it was also the only way that the holes in the crown case could be exposed, and the defence case could be established. As can often occur during criminal cases, there can be pressure on the parties involved to agree evidence. This case acts as a warning that a cautious approach must be taken; by agreeing evidence, there will be a missed opportunity to have certain witnesses on the stand which can be extremely detrimental to a case. In this case, a timetable was agreed at the outset and adhered to, in order to allow for all witnesses to be heard. Finally, the case highlights the importance of interviewing all witnesses very carefully, in order to ensure high quality statements are available when building a defence.
In terms of the 2007 Act and what this tells us about cases going forward, it still leaves many questions unanswered. It bears striking resemblances to the approach taken in the old common law manslaughter cases, rather than setting a precedent under the new test of the need for senior management involvement – but not necessarily that of the “controlling mind” of the company. It does however highlight that as we are increasingly seeing, every effort is being made to hold individuals accountable where there are deemed to be health and safety failings. Interestingly, no health and safety charges under the Health and Safety at Work Act 1974 were included in the charges – the crown’s approach seemed to be that if they could establish gross negligence on the part of the mine manager, then they would succeed with corporate manslaughter against the company.
The case was conducted by Prashant Popat QC, of Henderson Chambers for the company and Elwen Evans QC and Owen Williams for the mine manager. A determination to explore in full the facts and circumstances of an incident can undoubtedly yield results for defendant and defence team alike.