Corporate Manslaughter and Corporate Homicide Act 2007
The Corporate Manslaughter and Corporate Homicide Act 2007 introduced a new offence for prosecuting companies and other organisations where there has been a gross failure in the management of health and safety with fatal consequences.
It is important to be aware that there have been no successful prosecutions for corporate manslaughter since 2017. There have been fewer than 30 convictions since the Act came into force. The concept of senior management failure as a substantial cause of death, introduced by the Act of 2007, appears to be difficult to prove. Most fault in workplace deaths may be attributed to a number of aspects of a company’s activities, and not necessarily to senior management.
It has been argued that the Act of 2007 is now redundant.
Under previous law, a company could only be prosecuted successfully for manslaughter if the guilt of an identified human individual could be attributed to the company. In other words, the company must have had a criminal intent, or mens rea.
In practice, for there to be a successful manslaughter prosecution of a company it was necessary for there to be a successful prosecution of a company director or company officer for manslaughter.
The Act of 2007 effectively applies to all organisations that employ people and this includes partnerships, clubs, trade unions, schools and other educational institutions, local authorities, hospital trusts and individuals who employ others in small businesses.
Under the law, companies, organisations and, for the first time, government bodies, face an unlimited fine if they are found to have caused death due to their gross corporate health and safety failures.
The legislation has, in theory, the following impacts.
• It makes it easier to prosecute companies and other large organisations when gross failures in the management of health and safety have resulted in death.
• The Act allows unlimited fines to be imposed and enables the courts to force companies to publicise their convictions through a publicity order, resulting in severe damage to reputation.
• It reforms the law to remove a key obstacle to successful prosecutions so that both small and large companies can be held liable for manslaughter where gross failures in the management of health and safety cause death.
• The Act removes Crown immunity to prosecution, meaning that Crown bodies, for example government departments, will be liable to prosecution. Before the Act was passed, Crown bodies, including government departments and other public sector organisations, for example police forces, were excluded from potential prosecution by the concept of Crown immunity. Where such organisations were involved in breaches of health and safety law which would have resulted in the prosecution of private companies, the only action which could be taken was the issue of a Crown Censure.
Organisations should be aware that it will be a jury which will be asked to consider the gravity of the operator’s fault when deciding whether there has been a gross breach of a duty of care for the purposes of the 2007 Act. Evidence of a gross breach of duty may include, for example:
• poor systems of maintenance
• inadequate record-keeping
• scheduling of drivers’ duties which causes drivers to work without having the necessary daily and weekly rests.
The law applies to foreign companies doing business in the UK so that it will not be possible for a company incorporated overseas but carrying out activities here to escape prosecution. The Government recognises that there may be practical problems in taking enforcement action against such companies.
Criminal proceedings may be brought against parent companies or other companies within a group if their management failings contributed to the death. This will prevent group structures from being used for evasion, for example by setting up subsidiary companies to carry out risky business or by establishing financially weak subsidiary companies with insufficient assets to pay fines.
The Act makes provisions against criminal liability evasion by dissolving a company or making it insolvent before the prosecution takes place. Companies could be subject to legal proceedings to freeze their property and assets and that such proceedings could be taken before a prosecution commences, to prevent assets being transferred or dissipated..
The consent of the Director of Public Prosecutions will be required for all prosecutions brought under the legislation.
If a company’s management failure leads to the transmission of a fatal disease, the company may be guilty of corporate manslaughter
In February 2011 Cotswold Geotechnical Holdings became the first company to be convicted of the offence of corporate manslaughter under the 2007 Act.
The case concerned the death of Alex Wright, a geologist employed by the company. In September 2008, he was investigating soil conditions in a 3.5m-deep trench on a development site in Stroud, Gloucestershire, when it collapsed and killed him. Mr Wright had been left working alone in the trench when the director of the company left work for the day. The two individuals who owned the site were present, however, and heard a muffled noise and a shout for help. One of them called the emergency services while the other discovered that Mr Wright had been buried up to his head in the trench. He removed some soil so that Mr Wright could breathe. However, more earth fell into the trench and completely covered the victim, who consequently died from traumatic asphyxiation.
The prosecution made the following points.
• Mr Wright was working in a dangerous trench because the company’s systems had failed to take all reasonably practicable steps to protect him from working in that way.
• The company had ignored well-recognised industry guidance, which prohibited entry into excavations more than 1.2m deep.
• The company required junior employees to enter into and work in unsupported trial pits, typically from 2–3.5m deep.
Cotswold Geotechnical Holdings was a small company that employed eight people. Its director, Peter Eaton, was in overall control of the way in which the company managed its affairs. Mr Eaton was charged with gross negligence manslaughter and a health and safety offence. In 2010, a judge ruled that he was too ill to stand trial. The jury at Winchester Crown Court found the company guilty of corporate manslaughter after a trial before judge and jury which lasted three weeks. The dock was empty because the sole defendant was a company — an entity with a virtual legal personality based on general principles of company law.
Mr Justice Field is reported to have commented that the gross breach of duty to Mr Wright was a grave offence. He fined the company £385,000. The company, which was stated to be in a parlous financial state, could pay the fine over 10 years at £38,500 per annum. The fine aimed to mark the gravity of the offence and the deterrent effect which it would have on other companies, to strongly adhere to health and safety guidance.
A larger fine would cause the small company to be liquidated, which would result in four people losing their jobs. However, if the fine would still put the company into liquidation, it was unfortunate but unavoidable, and a consequence of the serious breach.
Other corporate manslaughter prosecutions include:
JMW Farms Ltd, a Northern Irish farming company, was fined £187,500 and ordered to pay £13,000 costs following its conviction for corporate manslaughter. In November 2012, an employee, Robert Wilson, was killed while washing the inside of a large metal bin at the company’s site. The bin fell off a forklift truck, having not been secured and the truck’s forks were too big for the bin. The Recorder of Belfast commented that corporate manslaughter, by its very definition, was an acceptance of a gross breach of duty. This was another incident where common sense would have avoided this tragedy.
PS & JE Ward Ltd, trading as Belmont Nursery, was charged with corporate manslaughter as well as failing to discharge a duty imposed by s.2(1) of the Health and Safety at Work, etc Act 1974, which covers the duty of the employer to ensure, so far as reasonably practicable, the health and safety of employees. In April 2014, a jury at Norwich Crown Court cleared PS & JE Ward of manslaughter but found it guilty of the breach of health and safety law. It was fined £50,000 and ordered to pay £47,937.20 costs, on 6 June 2014.
In another prosecution, a mining company was cleared of manslaughter charges following the deaths of four miners at Gleision coal mine in Wales, who became trapped in a shaft by a surge of water. The case centred on the factual finding of whether the mining manager had made the appropriate safety checks. The manager, and the companies’ directors, were also cleared of common law negligence.
In November 2014, Sterecycle, a specialist autoclave company, was convicted of corporate manslaughter. The conviction related to an explosion at the company’s waste processing plant in January 2011 which caused the death of a worker. The company went into administration in 2012. It was fined £500,000 as a mark of condemnation and to act as a deterrent. The judge stated that the majority of blame for the incident must be borne at senior management level, that is, the true or supposed brains of the company.
In January 2015, Pyranha Mouldings, a kayak manufacturing company, was convicted of corporate manslaughter following the death of a worker who was trapped in an industrial oven.
In February 2015, Peter Mawson Ltd, a building and joining company, was sentenced for corporate manslaughter following the death of an employee in a roof fall. The company was fined £200,000 for corporate manslaughter. It was ordered to post a publicity order on its website and to make a half-page statement in the local newspaper.
In May 2015, it was reported that Sherwood Rise Ltd, a care home company, was charged with corporate manslaughter following the death of an 86 year old woman days after she left a care home in Nottinghamshire owned by the company.
In October 2015, Linley Developments, a building company, was fined £200,000 for corporate manslaughter following the death of a worker when a wall fell onto him. The judge also made a publicity order against the company.
In November 2013, Princes Sporting Club was fined £134,500 for corporate manslaughter following the death of a child who was killed by a collision with a boat propeller when she fell from an inflatable banana boat ride at a water park. The judge commented that he proposed to fine the company every penny that it had. If it had been trading, he would have given a fine which would have put it out of business.
In March 2012, an employee of Mobile Sweepers (Reading) Ltd was crushed to death as he carried out repairs to a road sweeper. In March 2014, the company was fined £8000 plus £4000 costs, the total of its assets. The judge commented that the management failure had been the most serious of its kind the court was ever likely to hear.
In December 2015, Baldwins Crane Hire Limited was convicted of corporate manslaughter and fined £700,000 plus costs following the death of an employee. The deceased was employed by the company as a crane operator. At the time of his death, he was driving a 16-wheel, 130-tonne crane down an access road to a wind farm. As he drove the crane down the access road, it crashed after failing to negotiate a steep bend, killing the employee.
The crash was found to have been caused by serious problems with the braking system of the crane, which had not been properly maintained. The crane was fitted with four separate auxiliary braking systems in addition to the ordinary footbrake. Three of the auxiliary braking systems had been disconnected altogether and the fourth was damaged. There were also serious faults with the main braking system, with no operable brakes at all on seven wheels and faults or excessive wear to the remaining nine.
In August 2016, Bilston Skips Ltd was convicted of corporate manslaughter and fined £600,000 following the death of Jagpal Singh in a fall eight feet from the top of a skip supplied by the company. Safe working practices were not in place and the risk to on-site workers had not been considered and was not managed. There was no record of any health and safety qualified individual on site, no health and safety training and no system in place to report or record any incidents. Bikram Singh Mahli, the General Manager of the company, was sentenced to two years’ imprisonment suspended for two years.
In July 2016, Monavon Construction Ltd was fined £250,000 for each of two corporate manslaughter offences. These related to the death of two workers who fell into a 3.7m light well which had only perimeter edge protection. A publicity order was also imposed. The amount of the fine was based on the fact that the company was a micro organisation with a turnover of much less than £2 million. Mitigating factors included the company’s good safety record and lack of previous prosecutions, remedial steps taken after the deaths and recognition of the company’s guilty pleas.
In May 2017, Koseoglu Metalworks Ltd and Ozdil Investments Ltd were fined for corporate manslaughter at Chelmsford Crown Court. This followed the death of a worker who fell through the roof of a warehouse in Harlow. Ozdil was the owner of the warehouse. It contracted Koseoglu to carry out repairs. Koseoglu had no experience of roofing work. Its fee was £100,000 less than a recognised roofing contractor would have charged. It did not carry out a risk assessment and sent workers onto the roof without training and without netting or other safety measures. Ozdil Investments Ltd was fined £500,000 plus £53,000 costs. Koseoglu was fined £100,000. Firat Ozdil, a director of the company, was sentenced to one year imprisonment under s.3 of HSWA. Ozgur Ozdil, another director, was sentenced to 10 months’ imprisonment. Kadir Kose, a director of Koseoglu, was sentenced to eight months’ imprisonment. All three were disqualified from being directors for 10 years.
In March 2017, SR and RJ Brown, a construction company, was fined £300,000 for corporate manslaughter at Manchester Crown Court. MA Excavations was fined £150,000. MA Excavations had contracted roof work at a quarry to SR and RJ Brown. A worker was working on the roof in wet and windy conditions without fall protection. He fell and suffered fatal injuries. Christopher and James Brown, directors of the company, created false backdated health and safety assessments and ordered another worker to fetch lanyards and harnesses to give the impression that the deceased had been provided with safety equipment but had chosen not to use it. Both were sentenced to 20 months’ imprisonment for health and safety offences and perverting the course of justice. Mark Aspin, director of MA Excavations, was sentenced to 12 months’ imprisonment for health and safety offences.
In November 2017, a company and its director were sentenced for causing the death of a factory worker who fell into a piece of machinery at a recycling yard.
Safi Qais Khan died at Master Construction Products (Skips) Ltd (MCPS) after he became entangled in a machine called a trommel, used to sort waste material.
MCPS admitted the corporate manslaughter of Mr Khan, after an investigation found:
• there was no safe system of work for the trommel and it was in a dangerous state
• essential guards to prevent entrapment were missing
• there was no emergency stop button on the machine and it was surrounded by uneven and waste strewn ground.
The company also admitted a health and safety breach of a duty owed to its employee in failing to ensure measures were in place to minimise risks of entrapment, crushing or falls while working at the trommel.
Jagbir Singh, Director of MCPS, pleaded guilty to a health and safety offence. He admitted that he was aware of the way in which the company operated the trommel. The company was given a fine of £255,000 for corporate manslaughter. Singh was sentenced to 12 months’ imprisonment suspended for two years and 300 hours of community service at Birmingham Crown Court. He was also disqualified as a company director for eight years and ordered to pay £11,500 in prosecution costs.
In July 2017, Martinisation (London) was convicted of corporate manslaughter and fined £1.2 million after two workers fell from a balcony as they were lifting a sofa, weighing 115kg, to a first floor flat which was being refurbished by the company. Railings on the balcony gave way and the workers fell to the ground. Both workers suffered fatal injuries. The sofa delivery company had recommended that an external furniture lift should be used.
It has been reported that the Metropolitan Police has notified the Royal Borough of Kensington and Chelsea and the Kensington and Chelsea Tenant Management Organisation that there are reasonable grounds to suspect that each organisation may have committed the offence of corporate manslaughter in relation to the Grenfell Tower disaster.