It was with great anticipation that the Corporate Manslaughter and Corporate Homicide Act came into effect in April 2008. Despite the fanfare and publicity, there have only been three successful corporate manslaughter prosecutions under the Act to date, all of them against employers following the death of their employees.
So why was the Act so hotly anticipated and how importantly should it be viewed by employers, in particular those involved in health and safety management?
The Act came into force against a backdrop of a number of high profile failures to prosecute UK companies embroiled in catastrophic disasters. The UK legislative regime was historically widely criticised as being notoriously difficult to use to convict large companies facing fatal accidents in connection with their businesses. This was, in large part, attributed to the historic regime’s reliance upon the need to identify and establish guilt of the “directing mind” of the company. In other words, a senior figure who could be said to embody the company with his or her actions and decisions. In practice, such an individual is often far removed from the events surrounding the death, making establishment of guilt highly difficult to prove.
With that issue specifically in mind, the Act provides that companies will be guilty of manslaughter where the following can be established:
- a duty of care;
- the way the company’s activities were managed or organised caused the death;
- the way the company’s activities were managed or organised amounted to a gross breach of that duty of care; and
- the way in which the activities were managed or organised by its senior management was a substantial element of that breach.
Cotswold Geotechnical Holdings was the first company prosecuted under the Act in February 2011 and was fined £385,000 following the death of one of its employees in a trench collapse. That prosecution was succeeded by that of JMW Farms Ltd in May 2012 which fined £187,000 after a fatal fork lift truck accident involving an employee in Northern Ireland. The most recent prosecution involved Lion Steel Ltd. It was fined £485,000 and ordered to pay £84,000 in prosecution costs following the death of one of its workers, Steven Berry, when he fell through a roof light while working on its site in Manchester.?
The true impact of the Act is only very slowly starting to trickle through. This is understandable. Corporate manslaughter investigations are notoriously slow, understandably given the differing authorities that are involved and the often complex and sensitive issues. Given time, however, there is no doubt that we will see more and more prosecutions under the Act. The indications are that the UK prosecuting authorities are proving themselves willing to deploy the full arsenal of offences available to them under the Act and the related health and safety legislation.
It is understood that, a number of prosecutions are currently being commenced under the Act and there are reports that there are a further 60 cases under “active consideration” for prosecution. These reports should send a very clear warning to companies and their management – that any complacency regarding health and safety issues is very unwise, that prosecutions under the Act are becoming now a real reality of a conviction and the potential financial consequences will be very severe.