Second conviction since 2008
JMW Farms Limited, a Northern Irish farming company, has been fined following its conviction for corporate manslaughter.
In November 2012 Robert Wilson, an employee of JMW aged 45, was killed when working on the company’s site at Tynan, County Armagh. He was washing the inside of a large metal bin. It fell onto him from a forklift truck, causing fatal injuries.
The bin had not been secured or integrated with the truck. The truck was a replacement for the normal truck, which was being serviced.The liftng forks were too large and incorrectly spaced to be inserted into the bin’s sleeves.
JMW had carried out a risk assessment, including instructions for workers operating the truck. It would have been apparent to any operator that it would not be possible to take the necessary steps to secure against foreseeable dangers.
The Recorder of Belfast is reported to have made the following comments:
Yet again the court was faced with an incident where common sense would have shown that a simple, reasonable and effective solution would have been available to prevent this tragedy.
The very definition of the offence of corporate manslaughter was an acceptance of a gross breach of duty. That is, a high and totally unacceptable breach in circumstances where the risks were high, with the more than foreseeable likelihood of serious injury or death following if the proper steps were not taken.
This was a serious matter which required a substantial fine to be imposed to reflect the the culpability of the company, and also to send a message to all employers that their duty to their employees is daily and constant and any failure to discharge that duty will be met with condign punishment.
It was clearly foreseeable that the failure to address the hazard would lead to serious injury and indeed that the consequences could well be fatal.
The company had fallen far short of the standard expected in relation to such an operation.
The operation was permitted to continue for some time. However, there was no evidence that this represented a systematic departure from good practice across the company’s operations.
The directors of a company are fully responsible for the discharge of the duty of care to their employees. In this case a director was in control of the forklift and therefore culpability went to the very top of the company.
There was no evidence of a failure to heed warnings or advice, cost cutting at the expense of safety, or a deliberate failure to obtain or comply with relevant licences.
The company’s directors had accepted their responsibilities by the guilty plea, and the company had a good safety record.
No penalty imposed by the court could begin to be seen as a measure of the life of the deceased. The penalty reflected the factors in the case and also the principle that where a defendant pleads guilty, the court should reduce the sentence to reflect not just the fact that no trial has to be held (with all the trauma which this can cause particularly those close to the deceased), but also as evidence of the remorse of the defendant for their actions. The amount of reduction will also reflect the strength of the case against a defendant. the stronger the case, the less the reduction.
In 2011 JMW made £1.4 million profits and declared dividends of £200,000. This was an indication of a healthy, well-capitalised company in a good cash position.The appropriate fine would have been £250,000 but this would be reduced to £187,500 because the company had pleaded guilty. Costs of £13,000 would be awarded aginst the company.
This was the first time that the courts in Northern Ireland sentenced a compnay for corporate manslaughter. The Recorder therefore set out guidance for the courts to follow until the Court of Appeal had an opportunity to provide authoritative guidance. The Recorder based his sentencing on the guidelines issued by the Sentencing Council in England and Wales in relation to breaches of health and safety legislation resulting in a fatality, including corporate manslaughter. The Guidelines set out the appropriate levels of fine to be imposed, as follows:
The offence of corporate manslaughter, because it requires gross breach at a senior level, will ordinarily involve a level of seriousness significantly greater than a health and safety offence. The appropriate fine will seldom be less than £500,000 and may be measured in millions of pounds.
The range of seriousness involved in health and safety offences is greater than for corporate manslaughter. Where the offence is shown to have caused death, the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.
The plea of guilty should be recognised by the appropriate reduction.
Reaction to the case included the following:
The acting deputy chief executive of the Health and Safety Executive for Northern Ireland is reported to have commented that the judgment sent a clear message to directors in Northern Ireland, whether of a small or a large organisation, that they should take health and safety seriously.
The new corporate manslaughter legislation clarified the criminal liabilities of companies where serious failures in the management of health and safety resulted in a fatality. He would therefore urge anyone with a managerial or supervisory role to ensure that proper management and control systems were in place to prevent another needless death from occurring.
A spokesperson from the Police Service of Northern Ireland stated that the prosecution should send a clear message that there is no hiding place for anyone that breaks the law. Robert Wilson lost his life as a result of this incident and it was hoped that the conviction was a stark reminder that legislation was there for a reason.
A solicitor is reported to have commented that all eyes would now be on the second prosecution in England which was due to be heard in June 2012 where Lion Steel Equipment Ltd are charged with corporate manslaughter and three individual directors face charges of gross negligence manslaughter. the Attorney General recently commented that there are in the region of 50 cases under referral to the Special Crime and Counter Terrorism Division where corporate manslaughter is one of the offences under consideration. The message to UK business is to be on guard to avoid being in a similar predicament to JMW Farms.
In the four years since the Corporate Manslaughter and Corporate Homicide Act was passed, there has only been one other prosecution – that of Cotswold Geotechnical in 2011.
In contrast, the Health and Safety Executive has reported that there were 171 workplace deaths in 2010/2011. None of these resulted in charges of corporate manslaughter – most were dealt with under specific provisions of the Health and Safety at Work, etc., Act 1974.
A recent example is the 2012 case of Matthew Peter Williams, a director of Acryflor Ltd, a construction company, who was fined following an incident in which a worker suffered fatal injuries.
Paul Gibbons, a self-employed contractor, was carrying out re-roofing work for Acryflor on an industrial building in Penryn, Cornwall. He fell eight metres through a fragile asbestos cement roof. He suffered fatal injuries.
The work had not been adequately planned and no safety nets or crash deck platforms had been provided to mitigate the effects of a fall.
The company should have employed a planning co-ordinator to develop a construction plan for the work and the project should have been overseen by someone with with appropriate knowledge and experience.
Matthew Williams was fined £2500 plus £2500 costs under section 37 of the 1974 Act. He was £1.5 million in debt and his annual income was £15,000.
Section 37 of the 1974 Act states in summary that where an offence is committed by a company, with consent, connivance or neglect on the part of a director, the director is also guilty of the offence. It is not known why the offence of corporate manslaughter was not used in this case.