The introduction of the Corporate Manslaughter and Corporate Homicide Act 2007 (the ‘Act’) meant that for the first time companies would be held accountable for corporate manslaughter as a result of serious management failures that resulted in a gross breach of duty of care.
Since the Act came into force in 2008 the conviction rate has been low and this has caused many companies to assume that the legislation has little bite. This view is reinforced by the fact that not that many prosecutions have been brought since the Act was first introduced.
However, the number of investigations being progressed under the legislation is on the rise, with 63 new corporate manslaughter cases in 2012, as opposed to 45 in 2011, an increase of some 40%.
Within the industry this is being taken as a sign that the Crown Prosecution Service is pushing to reach its original forecast of some 10 to 13 prosecutions each year, which understandably makes many rather nervous.
In 2013, the conviction – as opposed to prosecution - figures remain the same as in 2012 – just three since the Act first came into force.
In February 2011 Cotswold Geotechnical Holdings was fined £375,000 over the death of a survey employee when a trench collapsed in Gloucestershire. In May of last year the second conviction was made and a fine of £187,000 imposed on JMW Farms when a feed bucket fell on an employee. The bucket fell from a forklift truck that was being operated by a director and was not secured as it should have been. Finally, in July last year a fine of £480,000 for Lion Steel Equipment after the death of a maintenance worker who fell through a fragile roof.
However, March of this year saw the Crown Prosecution Service charge another employer under the legislation, the fourth prosecution announced in as many months, indicating that the service is beginning to speed up its approach. Cases pending include those of Prince’s Sporting Club charged in February this year after an 11 year old died after falling from a banana boat ride during a birthday outing and being hit by a towing boat; and Mobile Sweepers (Reading), charged last month when an employee was killed when the truck he was working under collapsed on him.
One of the mooted reasons for the low numbers of prosecutions is that senior managers must play a significant role in the events that constitute the breach of the legislation. As the Act says: “an organisation is guilty of an offence … only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach”. This language is proving something of a loophole for businesses, as local failings or those being carried out by mid level management, no matter how widespread they may be, are simply not enough to warrant prosecution under the Act.
There are also some whisperings that the CPS has been reluctant to prosecute employers, especially large employers with big workforces as this would jeopardise jobs. Then there are the changes introduced with the Health and Safety (Offences) Act 2008 and the fact that the prospect of obtaining a conviction under health and safety legislation is often much easier than a conviction for corporate manslaughter.
Rather than face a very public corporate manslaughter charge many businesses would rather plead guilty to health and safety offences, making this type of conviction quicker and less costly. As the financial sanctions available under health and safety legislations – in the case of death – start at around £100,000, this is almost as punishing for a business as the corporate manslaughter conviction, which many feel is sufficient evidence that justice has been done.
However, whilst these factors demonstrate why the Act has not yet resulted in the predicted numbers of prosecutions, that is not to say that the situation won’t soon change. The Corporate Manslaughter and Corporate Homicide Act doesn’t yet appear to be the roaring tiger it was expected to be, but it is still very much in its infancy.