I spent some time over the last couple of weeks marking health and safety law masters assignments. One of the questions asked students to examine the introduction of the Corporate Manslaughter and Corporate Homicide Act introduced in 2007 particularly in comparison to the common law offence it replaced*. Sensibly all of the students correctly identified a succession of high profile cases under the old common law that failed due to the absence of a directing mind within the organisation that could be be said to have be grossly negligent. Most highlighted the need to see the outcome of the third case brought under the new Act, under way at the time, involving Lion Steel, a company large enough to almost certainly have escaped under the old offence.
As well as being charged under the Act, three of the firms directors were charged with gross negligence manslaughter, implying a continued connection with the actions of individuals that the Act was supposed to resolve. However at the start of the trial, on the 12th June, the corporate manslaughter offence was severed from the others due to the timing of evidence applicable to both health and safety and corporate manslaughter offences. This left the trial continuing with the individual manslaughter and section 37 health and safety offences, as well as the company’s health and safety offences. It came to a conclusion this week with the judge ordering the individual charges against two of the directors to be dropped, and the prosecution then dropping all remaining charges in return for a guilty plea for corporate manslaughter.
In one sense this resolves finally the need to identify guilty individuals when holding the company to account. Hooray for that I hear you say, the identification doctrine is no more. However in dropping the health and safety offences, particularly the section 37 offences against the directors that would have resulted in them being disqualified from being a company director, the worst critics of the new Act may come back to haunt it. In short this leaves a company whose activities were managed in such a serious way that they resulted in the death of one of its employees still being run by the directors who oversaw the ‘senior management failure’ that by way of its guilty plea can be deemed to have contributed to the offence.
I imagine the experience of being put on trial for gross negligence manslaughter will have such an effect on the individuals that health and safety will rise up their list of priorities, however the message that this sends to other organisations and their directors is seriously compromised. Sure, Lion Steel are in for a significant fine which could be accompanied by a publicity order, but there will be those that will examine this case and think the Act has failed. Despite it being a success.
Footnote – I spent a day in court following the trial. At the end of the days hearings, which mainly involved expert witnesses on roof access, the judge summed up the progress so far. “It would seem clear that this case revolves about the extent of knowledge people had about what was going on” he said. Nobody on either bench disagreed with him.
*in order to find a corporate body guilty of manslaughter an employee also had to be found guilty of gross negligence manslaughter with that employee being sufficiently influential as to have acted as directing mind of the whole organisation. In practice this limited the chance of successful prosecution to very small companies. See R v Kite and OLL Ltd 1994.