Corporate Manslaughter Prosecutions
Phil Crosbie on individuals in corporate manslaughter prosecutions
LAST month I discussed the growing number of individuals in corporate manslaughter prosecutions, and mentoned suggestions by many lawyers that individual charges were levied as an attempt to offer a bargaining position and secure ‘guilty’ pleas without the risks of going to trial.
The notion that a senior executive can actually ‘sacrifice’ the company to save themselves from a potential prison sentence is a dangerous, and somewhat ill advised observation.
l Is it a bargaining tool?
Firstly, the concept of individual prosecutions following a workplace death is not something new that has arisen following the introduction of statutory corporate manslaughter.
Peter Kite, director of OLL Ltd involved in the Lyme Bay kayaking tragedy, was imprisoned for three years following a conviction under the old common law corporate manslaughter.
Similarly, the concept of focussing on individuals has been recognised by the Health and Safety Executive for a long time. The HSE’s Enforcement Policy Statement asks that: ‘enforcing authorities should identify and prosecute or recommend prosecution of individuals if they consider that a prosecution is warranted.
‘In particular, they should consider the management chain and the role played by individual directors and managers, and should take action against them where the inspection or investigation reveals that the offence was committed with their consent or connivance or to have been attributable to neglect on their part and where it would be appropriate to do so in accordance with this policy.’
Indeed, the Health and Safety (Offences) Act 2008 brought about custodial sentences for the key individual health and safety offences from January 2009.
The idea that a prosecutor might ‘tag on’ individual offences in order to secure a corporate conviction also ignores the stringent test that any prosecution must satisfy.
The Code for Crown Prosecutors sets out the basic principles that prosecutors should follow, with the following mantra: ‘It is their duty to make sure that the right person is prosecuted for the right offence. In doing so, prosecutors must always act in the interests of justice and not only for the purpose of obtaining a conviction.’
A prosecutor must be satisfied that there is enough evidence against each defendant in order to provide a realistic prospect of conviction and the prosecution must be required in the public interest. Prosecutors are subject to constant scrutiny of their decisions to prosecute and would not do so lightly.
To the extent that any ‘deals’ are done, the prosecutor should ensure that the interests of the victims’ family are taken into account when deciding if it is in the public interest to accept certain pleas. There is also, arguably, some interest in securing a conviction without the expense, risk and emotion associated with a full criminal trial.
l All bets are off: Evidence of unbiased prosecution decisions, as opposed to the suggested ‘bargaining’, can be found in more recent cases of corporate manslaughter.
The recent case against PS & JE Ward Ltd saw no individual prosecutions. It also saw the company being acquitted of corporate manslaughter, but found guilty of health and safety offences following the death of an employee whose tractor vehicle hit overhead power lines.
The company was fined £50,000 with costs of £47,932. There were no reports of individuals being charged as a way to secure a corporate manslaughter conviction.
There was a second acquittal in June 2014 involving MNS Mining Ltd, following a three month trial at Swansea Crown Court. As well as the company, the mining manager who was personally charged with four counts of manslaughter, was also acquitted of all charges.
The prosecution case against the company and its manager was based on an alleged failure to conduct adequate safety checks before instructing workers to use explosives in a mine. The jury took less than two hours to return the ‘Not Guilty’ verdicts. Again, it would appear that the prosecution brought those charges it considered satisfied the relevant test, and put them before the Court.
Next month I will go further in explaining why there is a focus on individuals?
Phil Crosbie is a senior associate at Eversheds, described as one of the world’s largest corporate law firms
This article has been reproduced from the Contract Flooring Journal. You can find them at www.contractflooringjournal.co.uk.