Corporate Manslaughter – a brief updatePrint publication
The Corporate Manslaughter and Homicide Act 2007 (the Act) facilitates the prosecution of corporate entities where a death is caused by their gross breach of a duty of care and senior management failings are a substantial element of the breach.
The offence requires the following elements to be proved against the defendant 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.
Although there have been relatively few prosecutions to date, the wide sentencing powers, which include an unlimited fine and orders to make compensation, remedy faults or publicise the breach, can have a significant impact on a defendant’s finances and reputation.
The suggested starting point for a fine following a corporate manslaughter conviction is £500,000 under the sentencing guidelines but successful prosecutions to date have seen varying levels of fines imposed. In some cases the fines imposed have fallen below the suggested starting point to reflect the financial health of the defendant but there is no guarantee that a court will adopt this position in future cases. Cotswold Geotechnical (Holdings) Limited was the first organisation to be charged with corporate manslaughter and was fined £385,000 in February 2011. JMW Farm Limited was fined £187,500 in May 2012 and Lion Steel Limited was fined £480,000 in July 2012.
The offence of corporate manslaughter does not apply to individuals but directors and managers could still be prosecuted under the common law offence of gross negligence manslaughter if their personal breach of a relevant duty of care is of sufficient magnitude and results in death. The organisation and individual officers or staff members could also be prosecuted for breaches of the Health and Safety at Work etc Act 1974 (HSWA) and the cases below illustrate that this is often the case.
Sterecycle (Rotherham) Limited was charged with corporate manslaughter in October 2013 after an employee died when the door to the autoclave that he was working on blew out under pressure. Another operator was seriously injured. Sterecycle fell into administration last year after its performance was “significantly affected” by the fatality, but this has not deterred the prosecution. The maintenance manager, operations manager, and operational director were all charged under section 7 of the HSWA (failing to take reasonable care for the health and safety of themselves and other persons at work, and/or failing to co-operate as far as necessary with their employer to enable any duty or requirement imposed under any relevant statutory provisions to be performed or complied with). The maintenance manager was also charged with perverting the course of justice.
Other recent cases include:
Mobile Sweepers (Reading) Limited was charged with corporate manslaughter in March 2013 in relation to the death of an employee who was working on a repair underneath a road-sweeping truck. The company’s sole director has also been charged with gross negligence manslaughter. Additional charges have been brought against the company and sole director for an offence under section 2 of the HSWA (failing to ensure the health, safety and welfare of its employee) and an offence under regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998 (failing to ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair).
Princes Sporting Club Limited was charged with corporate manslaughter and an offence under section 3 HSWA (failing to ensure that persons not in their employment are not exposed to risks to their health and safety, and/or failing to give information relating to such risks) in February 2013 over the death of an 11 year old who was struck by the speedboat that had been towing the banana boat she was riding. Its director is also to be prosecuted under section 37 HSWA (under which an individual director, company secretary or manager of a company can be held criminally responsible for a health and safety offence 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, company secretary or manager).
MNS Mining Limited was charged with four charges of corporate manslaughter in January 2013 following the deaths of four of its colliery workers. The manager also faces four counts of gross-negligence manslaughter.
PS & JE Ward Limited was charged with corporate manslaughter and an offence under section 2 HSWA (see above) in November 2012 after an employee was electrocuted when the metal hydraulic trailer he was towing touched an overhead power line.
Although there have been relatively few prosecutions to date, organisations should not be lured into a false sense of security. Recent figures suggest that the Crown Prosecution Service investigated 40% more corporate manslaughter cases in 2012 than it did the previous year suggesting that corporate manslaughter cases are on the rise.
It is important that organisations ensure that they have adequate safety management systems in place, and that directors and managers understand the importance of their own health and safety obligations. However, of critical importance is ensuring that suitable and sufficient policies and procedures are fully embedded within the organisation and supported by a strong compliance culture from the boardroom down to the shop floor.