After a slow start, The Corporate Manslaughter and Corporate Homicide Act 2007 is gaining
momentum with a growing number of cases in the pipeline. Rhys Griffiths & Alexandra Hulme
chart the Act’s progressThe Corporate Manslaughter and Corporate Homicide Act 2007 ("the Act") was introduced after much publicity about the failings of the old law, which was simply not fit for purpose. It had failed spectacularly to secure convictions in the Zeebrugge ferry disaster and also in the many dreadful rail crashes which occurred subsequently in and around London. The Act was introduced to abolish the old law of corporate manslaughter and introduce a new law fit for the 21st century.
The first charge was not brought until 2009 and the first conviction was not obtained until 2011. In spite of this, there are now signs that the Crown Prosecution Service (CPS) is getting to grips with the Act and is prepared to use it to get tough with those organisations which do not take their safety obligations seriously.
The Act provides that a company will be guilty of corporate manslaughter if: (a) the grossly negligent way in which it managed or organised itself caused someone's death; and (b) the senior management were substantially to blame for this failure. The factors a jury will take into account when deciding whether the corporate negligence is "gross" include whether the organisation failed to comply with any health and safety legislation, how serious that failure was and how much of a risk of death it posed. Interestingly, the jury may also take into account the safety culture of the company.
The increase in charges The first charge of corporate manslaughter was not issued until Cotswold Geotechnical (Holdings) Ltd ("CGHL") in April 2009. This case concerned the death of a geologist employed by CGHL, who died when a pit he was working in collapsed. The company was found guilty in February 2011. If the Act started slowly, 2012 saw it used with more regularity. It was used to charge JMW Farms Limited ("JMW") in Northern Ireland for the death of an employee during a workplace accident, which JMW pleaded guilty to. It was also used to charge and convict Lion Steel Ltd ("LSL") in relation to the death of a general maintenance worker who fell through a roof light. Finally, in November 2012, corporate manslaughter charges were brought against PS & JE Ward Ltd in relation to the death of an employee who died when the metal hydraulic lift trailer he was towing touched an overhead electric line.
The increasing number of cases has continued into 2013. We have already seen this year charges brought against MNS Mining Ltd following the death of four miners from a flood at its mine in September 2011. This was followed soon after by charges against Prince's Sporting Club for the tragic death of a young girl who was hit by a speedboat after falling off a banana boat. Finally, the most recent charge as at the time of writing is that of Mobile Sweepers (Reading) Limited for the death of an employee who died when a mobile sweeping unit he was repairing collapsed on him at the company's premises. There is no doubt that there is an increasing trend of corporate manslaughter prosecutions.
Sentencing
The sentence for a company found guilty of corporate manslaughter will typically be a fine. The courts also have the power to impose remedial orders (an order that the company changes a working practice), publicity orders (an order that the company publicises the fact of its conviction), compensation orders, prosecution costs orders and a victim surcharge. The sentencing guidelines for corporate manslaughter emphasise that fines ought to be substantial in order to reflect the gravity of the offence. This has been borne out in the cases described above.
CGHL was fined £385,000, payable over ten years, which in fact amounted to around 250% of the company's turnover. The gravity of the fine was said to reflect the seriousness of the offence, but the court acknowledged that the level of the fine risked the company’s insolvency given its financial state. In similar fashion, LSL was fined £480,000, to be paid in four instalments, plus £64,000 towards prosecution costs. In this instance the court took LSL's guilty plea into account when setting the fine and, as above, the court acknowledged the potential risk of insolvency and subsequent loss of employment to its current employees.
The future
The cases described demonstrate that, after a slow start, the Act is now being used to bring charges against those organisations which do not have proper and effective safety systems in place. The likelihood is that the number of cases will increase, particularly as the CPS gets more familiar with its provisions and confident that it can be used to secure convictions. Rhys Griffiths is a partner and Alexandra Hulme is a solicitor in the Dispute Resolution Group at Field Fisher Waterhouse LLP 020 7861 4000
