Corporate Manslaughter 6 years on...

The Key Principals of the Act

Prior to the Act, in order to convict a company of manslaughter it must have been shown that a causal link existed between:

1. A grossly negligent act or omission by a person who is the "controlling mind" of the company and;
2. The immediate cause of death

The corporate manslaughter and corporate homicide Act 2007 makes it easier to prosecute companies and other large organisations when gross management failures lead to death. This is achieved by removing the key obstacle of establishing an individual’s "controlling mind" to successful prosecutions.

A company is guilty of the offence of Corporate Manslaughter if the way in which its activities are managed or organised, by its senior management, amount to a gross breach of the duty of care it owes to its employees, the public or other individuals and those failings caused the persons death.

The Act focuses on the way in which a company's activities are managed and organised, and it is not reliant on one individual being found guilty of gross negligence manslaughter. Subsequently, the courts are able to consider the wider corporate picture, looking collectively at the failings of the company's senior management.

Five Convictions in Six Years

First Conviction: 17th February 2011

Cotswold Geotechnical Holdings Ltd was the first company to stand trial under the Corporate Manslaughter and Corporate Homicide Act 2007. The conviction came after a two-week trial, where the company answered charges by the Crown Prosecution Service in relation to the death of employee Alexander Wright on 5 September 2008.

Mr Wright, 27, had been left working alone in a 3.5m-deep trench after the managing director of Cotswold Geotechnical Holdings, Peter Eaton left for the day.

The company was fined £385,000 on 17 February 2011. Peter Eaton had originally been charged with manslaughter by gross negligence but these charges were dropped last October on the grounds of his poor health.

Second Conviction: 8th May 2012

The second conviction was issued 15 months after the first against JMW Farms Ltd who was fined £187,500 at Belfast’s Langanside Crown Court for safety failings which led to the death of employee Robert Wilson.

On 15 November 2010 Mr Wilson, 45, was working at the firm's meal-mixing farm when he was struck by a metal bin that fell from the raised forks of a forklift. The vehicle was being driven by one of the company's directors, Mark Wright. The subsequent investigation found that the bin had not been properly attached to the forklift and when the vehicle reversed the bin became unstable and fell on Mr Wilson, who suffered fatal head injuries.

JMW Farms pleaded guilty to breaching the Corporate Manslaughter and Corporate Homicide Act 2007 and, in addition to the fine, it was ordered to pay £13,000 in costs.

Third Conviction: 20th July 2012

A mere 2 months after the second conviction, Lion Steel Equipment Ltd was convicted of corporate manslaughter and ordered to pay a fine of £480,000, along with of £84,000 towards the Crown Prosecution Service's costs, in relation to the death of worker Steven Berry in 2008. Mr Berry fell through a fragile roof light at the company’s Hyde premises after checking the source of a leak. This was and still is the largest fine to date under the Act.

Originally, the CPS had also brought charges under sections 2 and 33 of the HSWA 1974 against the company, as well as charges of gross-negligence manslaughter and breaches of section 37 HSWA 1974 against three of the firm's directors: Kevin Palliser - works manager; Richard Williams - works manager; and Graham Coupe - financial director.

However, following a submission of 'no case to answer', Richard Williams was acquitted of both charges he faced and Graham Coupe was acquitted of the manslaughter charge but remained charged under section 37 HSWA 1974. Following these rulings the company pleaded guilty to corporate manslaughter and the remaining charges against Graham Coupe and Kevin Palliser were dropped.

Fourth Conviction: 15th October 2013

The fourth case was against J Murray and Sons, convicted following its guilty plea on 7 October 2013. Employee Norman Porter had been working for J Murray & Sons for eight weeks and was mixing animal meal in a blender on 28th February 2012 when he became entangled with its blades, subsequently dying from his injuries.

The investigation revealed that J Murray & Sons had bought the blending machine three years previously and had removed safety panels from the top of the mixer to allow raw ingredients to be added more easily. This exposed moving parts of the machine and contributed to this terrible accident.

On 15th October the company was sentenced to pay a fine of £100,000 and prosecution costs of £10,000. The company was approved to pay the fine in annual instalments of £20,000 in order to maintain the employment of its 16 employees.

Fifth Conviction: 22nd November 2013

One month after the conviction of J Murray & Sons, Water sports firm Prince's Sporting Club has been fined £134,459 including costs, after pleading guilty to charges under the Corporate Manslaughter and Corporate Homicide Act 2007.

This case was a particularly tragic story involving a young girl of eleven who was at a friend's birthday party on 11 September 2010. The party took place at Princes Sporting Club and the children were on an inflatable ride towed by a speed boat. It was common for children to fall off the inflatable ride at regular intervals, to be subsequently picked up by the speedboat and allowed back on the ride. Unfortunately, 11 year old Mari-Simon fell from the boat and was not seen by the boat driver. She was then hit by the speedboat, sustaining fatal leg wounds.

The investigation revealed that the inflatable was not supervised by a competent adult in the speedboat to warn the driver if anyone fell into the water. The Crown Prosecution Service argued that this constituted a gross breach of the club's duty of care.

Interestingly, Judge Alistair MacReath stated that “the fine was limited by the company's lack of assets... I propose to fine this defendant company every penny that it has. I have no power to do anything other than impose a fine and I can impose no more than all of its assets”. Princes Sporting Club's last filed accounts show it had assets of £75,381 and liabilities of just over £1 million.

The Judge made this statement after the charge to Prince's Sporting Club director Frederick Glen Walker of breaching Section 37(1) of the Health and Safety at Work Act was dropped.

What Is the Importance of the Act?

In all honesty, the Act has not made the firm impression it was predicted to back in 2007. With only 5 companies prosecuted in 6 years it begs the question, what was the need for the Act to be passed in the first place?

To answer this we must consider the events that triggered the requirement for the Act in the first place, among which are:

• The 1987 P&O European Ferries in which 193 people died, all defendants were acquitted
• The 1997 Great Western Trains crash in which 7 people died and nearly 150 were injured, all defendants were acquitted.
• The 2002 Barrow Borough Council Legionnaires outbreak in which 200 people were affected and 7 died, all defendants were acquitted.

In each of these cases the law did not allow for the prosecution of Manslaughter to take place because of the nature of the incidents, even though serious concerns had been raised regarding the Senior Managers of the companies involved. From these cases alone, it is clear that even with a low level of convictions to date the Act is still a necessity and will provide justice for potential future events.

What Does This Mean For The Future?

It must be noted that the Lion Steel case was the first real example of the size of fine courts are likely to impose on companies with a reasonable turnover and profits. As the Act is intended for large companies that previously escaped prosecution, surely this is the fate of the Act?

This is certainly not the case in the short term, as the 4 companies currently under trial of the Act are not major organisations like P&O Ferries or Great Western Trains. As such, it seems as though the Act is being used most effectively for SME's.

With this in mind, it would seem that it is now easier than ever before to achieve a successful prosecution, especially when you consider the fact that the HSE has also prosecuted 80 organisations for fatal accidents in the past 6 years. Furthermore, there were 63 new corporate manslaughter cases triggered in 2012, representing an increase of 40% from 45 in 2011, as reported by law firm Pinsent Masons.