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This 2007 the consequences for Directors of gross negligence with respect to safety of employees and the public has increase. Now the consequences could be incarceration. This article outlines the basis of the corporate manslaughter law and some notable cases.
The Corporate Manslaughter and Corporate Homicide Act 2007
After much lobbying to address the shortcomings of prosecutions of corporate bodies under common law the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) was introduced.
Under CMCHA, corporate manslaughter:
- Can only be committed by organisations and not by individuals
- Requires a breach of the duty of care under the law of negligence
- Requires that the breach is a gross breach, i.e. where the conduct of the organisation falls far below what should reasonably be expected
- Requires that a substantial element in the breach is the way in which the organisation’s activities are managed or organised by its senior management
- Is committed only where death is shown to have been caused by the gross breach of duty
The sanctions available to the courts include unlimited fines, publicity orders and remedial orders.
Sentencing Guidelines
The Sentencing Guidelines for Corporate manslaughter suggests that an appropriate level of fine will seldom be less than £500,000 and may be measured in millions of pounds.
Publicity Orders may require publication in a specified manner of:
- The fact of conviction;
- Specified particulars of the offence;
- The amount of any fine
- The terms of any remedial order
Remedial Orders
Any specific failings involved in the offence ought to have been remedied by the time of sentencing and if not will deprive the defendant of significant mitigation.
If, the failings have not been addressed a remedial order may be used if it can be made sufficiently specific to be enforceable.
As the remedial order requires only what should already have been done the cost of compliance with the order should not be considered in setting the fine.
What is the current test to prove an offence?
In the case of an individual, they are deemed to commit (involuntary) manslaughter when death occurs through ‘gross negligence’. But what is ‘gross negligence’ for a company?
The test of whether a “company” can be found guilty of common law manslaughter is intrinsically linked to the ‘identification doctrine’. A director or senior manager (a controlling mind and will) of the company has to be found guilty, for the company to be found guilty.
Background to the Corporate Manslaughter Law
There were a number of disasters in the 1980’s and 1990’s which lead to failed prosecutions for corporate manslaughter.
The Southall rail crash on 19th September 1997 resulted in 7 deaths and 151 injuries, leading to Great Western Trains (GWT) pleading guilty to contravening Section 3(1) of the Health and Safety at Work Act, and receiving a record fine of £1.5 million.
Mr Justice Scott-Baker expressed his concern regarding “a serious fault of senior management”. However a charge of manslaughter could not succeed because no individual could be prosecuted and found guilty of gross negligence manslaughter.
The HSE commented that death or personal injury resulting from major disasters was rarely due to the negligence of a single individual but was more likely to be the result of the failure of systems controlling the risk, with the carelessness of individuals being a contributing factor.
Corporate Manslaughter Prosecutions
R v Cotswold Geotechnical (Holdings) Ltd. (2011)
Cotswold Geotechnical (Holdings) Ltd was found guilty at Winchester Crown Court of the corporate manslaughter charge relating to the death of Alexander Wright, and fined £385 000.
Mr Wright aged 27, was working alone in the 12.6ft (3.8m) deep unsupported trial pit when it caved in at a development site near Stroud, Gloucestershire, in September 2008.
The company director Peter Eaton was personal charged with common law gross negligence manslaughter and a breach of section 37 HASAWA. Mr Eaton was seriously ill with cancer and was unable to stand trial.
The judge said that Peter Eaton was in substance the company and his approach to trial pitting was “extremely irresponsible and dangerous”.
R v JMW Farms Ltd. (Northern Ireland) (2012)
Robert Wilson was washing the inside of a large metal bin which was positioned on the forks of a forklift truck. He jumped onto the side of the bin which then toppled. He fell to the ground with the bin falling on top of him resulting in his death. The forklift truck was a replacement for the normal truck which had gone for servicing a number of weeks earlier. The position of the forks on the replacement truck did not correspond with the position of the sleeves on the bin and therefore the bin was unstable.
The company was held to be aware of the danger as it had carried out a risk assessment which included instructions for anyone operating the forklift truck. However no assessment had been made of the position of the forks of the replacement truck and the sleeves on the bin.
The Recorder said that the appropriate fine would have been one of £250,000.00. He reduced that by 25% to reflect the plea of guilty. He thereby imposed a fine of £187,500.00. He allowed the company 6 months to pay the fine and the costs of the prosecution (which amounted to £13,000.00 plus 20% VAT).
R v Lion Steel Equipment Ltd. (2012)
Steven Berry died from his injuries after an accident on 28th May 2008 when he fell through a fragile fibreglass roof panel thirteen metres to the factory floor at the Lion Steel site in Hyde, Cheshire.
The company pleaded guilty to the offence on the basis that three directors were not prosecuted for common law manslaughter or section 37 offences.
Mr. Berry was expected to go up on the factory roof to make roof repairs, unsupervised, with no training and with no safety equipment such as crawl boards or a fall-arrest harness. The roof, which had been patched up at various times over the previous decades, had no warning notices about fragile sections — despite the firm being warned on this point by an HSE inspector in 2006.
In sentencing Judge Gilbart noted that though the company was in profit, it had substantial loans, the directors were not paying themselves extravagant salaries, and shareholders had not received a dividend for three years.
The fine was set at £480,000 but mindful of the jobs of Lion’s 140-strong workforce the judge specified that Lion Steel should be allowed to pay the penalty in four instalments over three years. The prosecution’s claimed costs of £140,000 were reduced to £84,000 and the company were given two years to pay.
R v Mobile Sweepers (Reading) Ltd. 2014
Malcolm Hinton suffered fatal crush injuries on 6 March 2012, while attempting to repair a hopper on a road sweeper operated by the defendant company Mobile Sweepers (Reading) Limited.
The sweeper was elevated from the ground by a hydraulic function but was not propped.
Mr Hinton accidently cut through a hydraulic hose while attempting the repair and the sudden loss of hydraulic pressure caused the half tonne hopper, to fall back on to the sweeper chassis and crush him.
Mobile Sweepers (Reading) Limited ceased trading soon after the fatality and a new company, Owens Sweepers Limited was set up by the company’s sole director, Mervyn Owens around six months later.
In response to the issue of businesses being put into administration and subsequently resurrected as new or ‘phoenix’ businesses Mobile Sweepers (Reading) Limited was fined a mere £8 000 whereas Mervyn Owens was fined £183 000 and disqualified under the Company Directors Disqualification Act for five years.
Owens was convicted of an offence under section 2 / section 37 of the Health and Safety at Work etc. Act 1974; and a charge of gross negligence manslaughter was left to lie on file.
The case is also significant due to the first imposition of a publicity order which was drafted by Judge Boney and published in the legal notices of the Basingstoke Gazette and Newbury Weekly News; on the10th April 2014.
ARTICLE ENDS
