Police enforcement of offences created by the much heralded Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) has been slow.
By way of reminder, CMCHA created a new offence under which an organisation is guilty of manslaughter if the way in which its activities are managed or organised -
- causes a person's death, and
- amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased
provided that it can be proved that the way in which its activities are managed or organised by its senior management is a substantial element of the breach.
To date, there have been three convictions in England and Wales.
The most recent, in a judgment delivered in July this year, was R -v- Lion Steel Equipment Limited where a fine of £480,000 was imposed, payable in four instalments over three years, plus £84,000 prosecution costs.
Lion Steel pleaded guilty on prosecution following the death of an employee at the end of May 2008 when he fell through a roof skylight. Lion Steel was also prosecuted for a breach of section 2 HSWA and for a Work at Height regulatory breach. Additionally a gross negligence manslaughter charge and a charge for neglect under section 37 of the HSWA was brought against three directors of the company.
The accident occurred less than 8 weeks after CMCHA came into force so issues arose about the extent to which activities prior to 6 April 2008 (when the Act became law) were relevant.
Once the trial was underway, the court ruled that there was no case to answer to the manslaughter charges against two of the directors and no case to answer for neglect against one of them. After this ruling the case was adjourned and a plea bargain reached under which Lion Steel then changed its plea to guilty for corporate manslaughter, and the remaining charges against the company and all charges against the directors were dropped.
The sentence imposed on the company for manslaughter was influenced by Sentencing Guidelines which suggest that a fine of less than £500,000 for corporate manslaughter will rarely be appropriate. The company was described financially as doing no better than "holding its own", relying "on loans and cash-flow to keep going". A Defendant's financial position is very relevant to the fine imposed by the court in these circumstances.
There were complexities particular to this case. It took three years for prosecution to start which the trial judge felt to be "unreasonable" particularly given the prosecution of individuals as well as the company. The Crown also initially rejected the plea bargain which was ultimately accepted. These factors resulted in an unusual costs order which allowed the prosecution to recover 60% of its costs until the plea bargain was first offered by the Defendants, and nothing after that time.
The Court was highly critical of the prosecution of the directors at all, and the prosecution's failure to take account of the very serious failing that must be proved to succeed with a gross negligence manslaughter charge against an individual.
The driving force behind CMCHA was the political desire to address a frustration that very large businesses appeared to "get away" with serious fatal accidents because of the need to prove under the old corporate manslaughter law, that someone who was seen as the controlling mind of the business, must also be guilty of manslaughter.
Commentators have bemoaned the fact that the CMCHA hasn't yet been used to prosecute a substantial business or public body: the two other companies who have been convicted so far being Cotswold Geotechnical Holdings and JMW Farms, neither of which seems to have been any bigger or more affluent than Lion Steel.
This may suggest that in fact the change in the law has ensured that larger companies are ensuring that they don't risk prosecution:
- By ensuring directors and senior managers are aware of the risks they and their businesses face
- By acting sensibly, through improved documentation, training, planning, and a culture change led from the top down to ensure that an accusation of gross breach of duty of care can not be justified against them
Then again, it may just be a matter of luck and time.