The enactment of the Corporate Manslaughter and Corporate Homicide Act 2007 (the “Act”) was seen as a landmark change in the law – for the first time, companies and organisations could be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care. However, although the statutory offence of corporate manslaughter has been in place for 6 years now, the defined margins of the offence are still in the process of being clarified through case law. Some recent cases where companies have been acquitted of the charge of corporate manslaughter help to define what the courts will consider to fall within the definition of corporate manslaughter in the Act. The cases demonstrate the first time companies have been acquitted of corporate manslaughter since the Act came into force.
The Act replaces the old law of corporate manslaughter and does not impose any new duties or obligations on companies but is linked to existing health and safety requirements. An organisation can be found guilty of corporate manslaughter if the following elements are proved against the organisation:
- the way in which its activities are managed or organised causes a person’s death;
- the death is the result of a gross breach of a relevant duty of care owed to that person; and
- the way in which the senior management managed or organised the organisation’s activities is a substantial element of the breach.
If found guilty of the offence the organisation will be subject to a fine. Currently, the Sentencing Guidelines state “there will inevitably be a broad range of fines because of the range of seriousness involved and the differences in the circumstances of the defendants. Fines must be punitive and sufficient to have an impact on the defendant.” The guidelines suggest that the appropriate fine will seldom be less that £500,000 and may be measured in millions of pounds. However, the Sentencing Council has recently published a consultation on new guidelines which suggest that fines for corporate manslaughter should be increased. The draft guidelines propose that a medium sized company with a turnover of between £10m and £50m could expect a fine ranging between £3m and £7.5m for the most serious offence and a fine of between £2m and £5m for a less serious offence. Very large companies with turnovers substantially higher than £50m could see fines in excess of £20m.
The first firm to be prosecuted under the Act was Cotswold Geotechnical Holdings which was convicted in February 2011 over the death of a junior geologist who was fatally injured when the sides of a trench collapsed. The company was fined £385,000 (the judged considered the consequences of the fine – being that the company would go into liquidation – and reached the conclusion that this was unavoidable). Since then a number of firms have been convicted of corporate manslaughter under the Act.
In April 2014 a jury found the company PS & JE Ward not guilty of corporate manslaughter. However, the company was found guilty of a health and safety charge for failures leading to an employee’s electrocution. The case marked the first time a firm had been acquitted of corporate manslaughter.
Mr Pieton was an employee of PS & JE Ward, a plant nursery operator. He was driving a tractor in one of the company’s fields when its hydraulic lift trailer hit the 11,000 volt overhead cables and he died of electrocution. Importantly, during the trial it was revealed that Mr Pieton had attended training for fork lift truck drivers that included working under live cables and it was argued that he was acting under his own initiative in carrying out the task in hand rather than following instructions from a director. Both of these factors are believed to have contributed to the outcome of the case.
Although the firm avoided a charge of corporate manslaughter, the judge sentenced PS & JE Ward for breaching section 2(1) of the Health and Safety at Work Act in June 2014. The company was fined £50,000 and ordered to pay costs of £47,932.
In 2014 to date there have been two acquittals and three convictions of corporate manslaughter under the Act.
The second acquittal concerns MNS Mining which was found not guilty of corporate manslaughter following an incident in which four miners died when the tunnel they were working in flooded. The mine manager was also found not guilty of gross negligence manslaughter. The case centred on whether the manager had adequately inspected the water risk and evidence from an expert geologist contributed to the mine manager’s acquittal.
The recent acquittals have some potentially significant implications. It is often the case that individual directors and senior management are prosecuted under the common law offence of gross negligence manslaughter alongside a corporate manslaughter case. Individuals within the organisation can also be prosecuted for breaches of the Health and Safety at Work etc. Act 1974. However, in the case of PS & JE Ward individual prosecutions were not pursued.
Individual prosecutions of senior management can assist in bolstering the chances of securing a conviction for corporate manslaughter. The recent acquittals may lead to prosecutors looking more closely into bringing legal proceedings against individual directors and senior management in the future.
There are a number of steps organisations can take to reduce the risk of prosecution under the Act. For example, organisations should:
- Have written health and safety policies in place which are subject to regular review.
- Have appropriate auditing systems in place that enable an assessment of the effectiveness of health and safety systems.
- Ensure there are clearly defined roles and responsibilities for safety matters at all levels throughout the organisation including having an appointed board member that has overall responsibility for health and safety.
- Ensure regular health and safety reports are submitted to and reviewed by the board.
- Provide appropriate and adequate training to relevant staff and keep a record of the training undertaken including the content of the training.
- Carry out regular risk assessments to identify and manage potential risks to individuals.