In April 2008 the Corporate Manslaughter and Corporate Homicide Act 2007 (Act) came into force. The Act abolished the common law offence of gross negligence manslaughter insofar as it applied to companies, creating a new statutory offence. The offence is of ‘corporate manslaughter’ (England, Wales and Northern Ireland) and ‘corporate homicide’ (Scotland). Ultimately, a company will be guilty of corporate manslaughter/homicide if the way its activities are organised causes death and amounts to a gross breach of the relevant duty of care owed to the deceased. There are three parts to that proposition:
- Firstly, there must be a ‘relevant duty’. This is simply a duty owed by a company under the common law of negligence or a statutory provision, such as those imposed by health and safety law.
- Second, there must be a ‘gross breach’, namely conduct falling far below what can reasonably be expected of the organisation in the circumstances.
- Lastly, the way in which senior management managed or organised the company’s activities must have been a substantial element of the breach in question. ‘Senior management’ means the people who play a ‘significant role’ in the making of decisions about how activities are organised or the actual management of the activities. In contrast to the old law, this probably now includes those below board level and may extend to regional and divisional managers (provided they are sufficiently involved in the organisation’s decision-making process).
As suggested, prosecution will be of the corporate body itself and not of directors, senior managers or other individuals. However, these persons can still be charged under health and safety law and the general criminal law: both of which remain unaffected by the Act. In particular, individuals should be aware of potential liability under the common law for gross negligence manslaughter/culpable homicide and under s.37 of the Health and Safety at Work etc. Act 1974. Section 37 allows for a director or officer of a company to be held criminally responsible for health and safety offences where the company itself is found guilty of a health and safety offence; and the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of, the director or manager.
Convictions to date
The Act is not retrospective, meaning that it only applies to fatalities which occurred after it came into force. As a result, very few cases have come forward and only three companies have been prosecuted to date.
R v Cotswold Geotechnical Holdings Ltd
Cotswold Geotechnical Holdings Ltd was the first company to be convicted under the Act. It was fined £385,000 – a sum equivalent to 115% of its annual turnover – which it is being allowed to pay over 10 years on account of its uncertain financial position.
The prosecution related to the death of Alex Wright, an employee who was killed when a 3.5 metre trench he had been working in collapsed, burying him. He died from traumatic asphyxiation. The company had not complied with best practice and guidance which advises against entry into excavations more than 1.2 metres deep without appropriate supports. The jury found that its system of work was also unnecessarily dangerous.
At the time of the incident, Geotechnical was a small company employing only eight people. The sole director, Peter Eaton, was in overall control of Geotechnical’s daily affairs and had been on site shortly before the incident.
Geotechnical was charged with corporate manslaughter under the Act itself. However, less publicised were the other common law and statutory charges levelled against Geotechnical and its director. Geotechnical were also charged with failing to ensure the health and safety of its employees, contrary to section 2 of the Health and Safety at Work etc. Act 1974. Mr Eaton was charged with manslaughter by gross negligence (a common law offence); as well as an offence under s37 of the 1974 Act (on the basis that Geotechnical’s breach of duty was committed with his ‘consent, connivance...or neglect’).
The sentencing judge found that it was plainly foreseeable that the way in which the company conducted its operations could produce serious injury or death. The standard by which it fell short of its duty of care was gross. There had also been an earlier incident when the company failed to observe advice and guidance given by the Health and Safety Executive.
R v JMW Farms Limited
In May 2012 JMW Farms Limited (Co. Armagh) was found guilty of corporate manslaughter following the death of an employee in November 2010. Mr Wilson, 45, was working at the firm’s meal-mixing farm in Co. Armagh when he was struck by a metal bin, which fell from the raised forks of a forklift. The vehicle was being driven by one of the company’s directors and the bin had not been properly attached to, or integrated with, the forklift. When the vehicle reversed the bin became unstable and fell on Mr Wilson, who suffered fatal head injuries as a result.
A joint investigation was conducted by the HSE Northern Ireland and the Northern Irish Police Service, which found that the forklift was an on-loan replacement vehicle while the usual truck was being serviced. The investigation also revealed that it was not possible to properly insert the lifting forks into the sleeves of the bin, as the forks were too large and incorrectly spaced. The company was fined £187,500 and ordered to pay £13,000 in costs.
R v Lion Steel Equipment Limited
Lion Steel Equipment Limited was prosecuted in June 2012, following the death of an individual in 2008. Mr. Berry fell through a Perspex sheet in a roof he was trying to fix and landed on a stone floor.
The investigation found that the firm had never offered health and safety training to Mr. Berry and it also emerged that considerable sections of the roof were fragile. No risk assessment had been carried out in relation to any employee working on the roof. ‘Signs of considerable neglect and apathy with respect to health and safety’ were also identified.
Originally, the Crown Prosecution Service had additionally brought charges under sections 2 and 33 of the Health and Safety at Work etc. Act 1974 against the company, as well as charges of gross-negligence manslaughter and breaches of section 37 of the same Act against three of the firm’s directors. However, in the course of the proceedings the company pleaded guilty to corporate manslaughter and the other charges were dropped.
The firm was fined £480,000, to be paid over four years with £84,000 costs. In setting this fine, which included a 20% reduction for the company’s early plea, the judge accepted that the company had a good safety record and also reflected upon the potential effect of a large fine on the company.
Three further cases under the Act are also currently going through the court process.
MNS Mining Ltd
MNS Mining Limited, the owner of a colliery in south Wales, will face four charges of corporate manslaughter under the Act. The company has been charged in relation to the death of four workers who died when they became trapped in a mine when it flooded on 15 September 2011. The firm’s mine manager, Malcolm Fyfield, has also been charged with four counts of gross negligence manslaughter. The case was remitted to Swansea Crown Court, where these charges were confirmed on 25 February 2013. A plea and case management hearing date has been set for 20 May 2013.
PS & JE Ward Ltd
Horticultural supplier PS & JE Ward Ltd has been charged in relation to the death of Grzegorz Krystian Pieton, who was electrocuted at Belmont Nursery on 15 July 2010. The case recently called for a plea and case management hearing on 14 February 2013, before Judge Jacobs. It is understood that a further accident concerning PS & JE Ward Ltd is being investigated by the Health and Safety Executive, which pre-dates the accident subject to the corporate manslaughter charges. No information has been made available in relation to the earlier accident and the severity of the accident is not known. It has been suggested that the investigations into this earlier accident could form part of the current proceedings. A decision is expected to be reached by the next hearing, assigned for 22 March 2013.
Prince’s Sporting Club Ltd
Prince’s Sporting Club Ltd is the latest company to be charged under the 2007 Act following the death of a young girl in 2010. In addition to the Corporate Manslaughter charge, the company has been charged with a breach of section 3 of the Health and Safety at Work etc. Act 1974. One of the company’s directors will also face prosecution under section 37 of the 1974 Act. The case has been referred to Southwark Crown Court for a plea and case management hearing, scheduled for 26 April 2013.
An organisation found guilty of corporate manslaughter is liable on conviction on indictment to an unlimited fine. The court may also make a remedial order and publicity orders. The offence is triable in the Crown Court in England and Wales or the High Court of Justiciary in Scotland – i.e. trials by jury.
The Sentencing Guidelines Council (SGC) issued guidelines for judges when passing sentence in court. These guidelines set out that fines for organisations found guilty of corporate manslaughter should be measured in millions of pounds and should not generally be below £500,000. As for health and safety offences that cause death at work, fines in the order of hundreds of thousands of pounds and generally not less than £100,000 are appropriate.
It is noteworthy that the three convictions to date ultimately laid down penalties lower than the £500,000 envisaged by the guidelines. Nevertheless, the fines were still significant in relation to the size of the companies involved. This is also perhaps consistent with the provision in the guidelines that any fine should be one which a defendant is actually capable of paying.
The concept of corporate manslaughter brings a new dimension of responsibility to companies and organisations and thus a new element in the corporate management of health and safety. Companies should therefore be asking themselves:
- How well equipped are we to deal with a fatality or serious accident?
- How would be manage the process of an investigation by the Health and Safety Executive and/or police?
- Does our board or directors fully understand the importance of this legislation and the steps they should be taking?
The Corporate Manslaughter and Corporate Homicide Act 2007 has now been in force for nearly five years. The Act sought to address the difficulties in prosecuting a corporation under the common law and to ensure the accountability of those who take unjustifiable risks with people’s safety. However, in the time since its inception just six cases have been brought under the Act: with judgments having been delivered in three of those cases to date. It therefore remains to be seen what the true impact of the Act will be. In particular, we have yet to see the prosecution of a really sizeable organisation under this legislation.