In a recent case handled by DWF, a jury at Norwich Crown Court returned a unanimous verdict of not guilty in what was the first acquittal for the offence of Corporate Manslaughter since the new law came into force in 2008.
The case of R v PS and JE Ward Limited threw the spotlight once more on Corporate Manslaughter but showed for the first time a number of chinks in the armour of the law.
The Corporate Manslaughter and Corporate Homicide Act 2007 states that an organisation or business is guilty of the offence of corporate manslaughter if the way in which it conducts or organises its activities causes a person’s death and amounts to a gross breach of duty of care of which senior management failures are a substantial element.
Any business is automatically investigated for Corporate Manslaughter where an employee or member of the public is killed in connection with its activities. There is no way out. Typically the investigation focuses on whether any gross breach of a duty of care is attributable due to senior management failings, more often than not with the benefit of hindsight.
Unlike health and safety law, Corporate Manslaughter law is investigated by the police and prosecuted by the CPS who take a much more forceful approach to their cases than HSE, treating cases as criminal, not just health and safety.
This case reminds us however that very few criminal prosecutions are open and shut cases. One essential distinction is that in Corporate Manslaughter, unlike in health and safety cases, the burden of proof remains throughout on the prosecutor and ultimately it is the jury which determines guilt.
The case involved a Norfolk based horticultural business whose employee was tragically killed by electrocution in 2010 when a trailer being towed by a tractor he was driving came into contact with an overhead power line for reasons that remain unknown.
After an 18 month investigation, the business was prosecuted for Corporate Manslaughter and also faced a single alternative count under Section 2 of the Health and Safety at Work Act 1974 of failing to ensure so far as reasonably possible the safety of an employee in the workplace.
One of the unique features of this case was that, unlike in previous Corporate Manslaughter cases, neither of the Directors faced any personal charges such as gross negligence manslaughter. This made it difficult for the Crown to distil its case of senior management failings through the actions of the Directors.
Much of the evidence at trial was concerned with whether the overhead power line circuit breaker (which would have saved the employee's life) was working, which was relevant to both the grossness of any breach by the company and issues of causation (intervening acts and omissions).
After a twelve day trial, the company was acquitted of Corporate Manslaughter but convicted of the health and safety offence.
The outcome of this trial shows that the Corporate Manslaughter prosecutions can be successfully defended.
The successful defence strategy involved both rebutting the assumption that another duty holder responsible for maintenance and inspection of the power lines had discharged its duties and successfully challenging the admissibility of vast amounts of evidence presented by the Crown at trial. In essence, this was a corporate criminal trial not a case of technical health and safety breach.
Sentencing took place on 6 June at Norwich Crown Court. The Judge accepted that a conviction for Corporate Manslaughter, because of the level of fine he would have had to impose (£500,000) would have wiped the Company out. However he accepted that this was a hard working and caring company and that there was no credible explanation for the employees actions other than that he was trying to be helpful. He fined the company £50,000 for the health and safety offence which in itself was well below the threshold of £100,000.
The Judge's remark that he would have been obliged to wipe out the company. regardless of the circumstances of the accident or its means serves as a chilling reminder of the impact of Corporate Manslaughter.
All organisations - public or private - should make sure that it understands who its senior management are and focus resources on ensuring that collectively and individually they are discharging their safety obligations. Any oversight or failing by one or more senior manager, where there is a death, could expose your organisation to the robust challenge of defending a Corporate Manslaughter prosecution.
The DWF defence team comprised of Rupert Nevin, Vikki Woodfine and Laura Wilmshurst of the firm's national Regulatory team.
The company was represented at trial by Graham Trembath QC and Miles Bennett of 5 Paper Buildings.
DWF is offering a unique board room briefing into the implications of this case, looking also at where things go wrong and how cases turn on evidence, that could be valuable to your organisation.