Sentencing under the Corporate Manslaughter and Corporate Homicide Act 2007 - A Scottish Perspective

There were 20 work based fatalities in 2014 in Scotland, yet not a single prosecution for these deaths under the Corporate Manslaughter and Corporate Homicide Act 2007 “CMCHA”. The article considers the effectiveness of the CMCHA in Scotland.

Pyranha Mouldings, a kayak manufacturer based in Runcorn, Cheshire is the latest company to be found guilty of the offence of corporate manslaughter after an employee became trapped in an industrial oven and died. The company was recently fined £200,000 at London’s High Court.

The Corporate Manslaughter and Corporate Homicide Act 2007 (“CMCHA”) has been in force since 2008 yet there have been only six convictions in England and Wales and none in Scotland. This article asks why this should be the case.

The lack of prosecutions under the CMCHA in Scotland are unfortunately not due to a lack of serious accidents. In 2014 there were 20 fatalities from work based accidents in Scotland compared with 113 in England and Wales. It is thought that the lack of convictions under the CMCHA within Scotland may be twofold. Firstly, there is a suspicion that the Crown Office and Procurator Fiscal Service (“COPFS”) lack the resources to pursue CMCHA cases meaning only the most high profile cases with a strong public interest are considered for prosecution. Secondly, it is argued that the wording of the CMCHA contrasted with the wording of the Health and Safety at Work Act 1974 (“H&SWA”) makes it preferential for the COPFS to prosecute (and more likely to secure a conviction) under the H&SWA for work based fatalities.

Under the CMCHA an organisation is guilty of an offence if “the way in which its activities are managed or organised” causes a person’s death and amounts to a gross breach of the relevant duty of care. Compare this with the wording of the H&SWA where there is an obligation on the employer to ensure, “as far as reasonable practicable” an employee’s health, safety and welfare. Once the prosecution has proved the absence of safety or a risk to health and safety under H&SWA, it is for the employer to show that it was not reasonably practical to do more that was to done to comply with the duty. Thus, placing a reverse burden of proof on the employer to demonstrate they did all that was “reasonably practicable”. It is of no surprise that companies continue to find themselves prosecuted under less serious offences under the H&SWA for fatalities caused in the workplace. In the author’s view, this may send out the wrong message.

Sentencing under the CMCHA is covered by the current “Definitive Guidelines: Corporate Manslaughter & Health and Safety Offences Causing Death”. These guidelines are presently under review by English Sentencing Guidelines Council (“SGC”). There are no specific Scottish sentencing guidelines for the offence of Corporate Homicide therefore the English guidelines are therefore likely to be highly influential in the Scottish Courts. As there is such little judicial precedent under the CMCHA to assist in decision making, the courts will continue to be asked to consider fines imposed under the common law offence of gross negligence to determine sentencing under the CMCHA. However, by introducing a step by step process this should assist the judiciary in sentencing in the future.

So far there have been only six convictions under the CMCHA and two acquittals, all in England and Wales. DWF LLP has successfully represented one of the two acquittals in the English Courts. Our team of specialist solicitors are experienced in dealing with the commercial sensitivity and high profile activity that accompany corporate manslaughter charges and can offer practical advice to clients in this specialised area of law.

Will 2015 see the first Corporate Homicide prosecution under the CMCHA in Scotland? The Scottish health and safety cases of Clydeport and the record breaking fine of £15m against Transco will remain the pre-eminent Scottish authorities for the sentencing of large organisations for breaches under H&SWA. These cases will, no doubt, be influential authority should a prosecution of a large organisation under the CMCHA be forthcoming in a Scottish Court. However, it is likely that securing a conviction under the CMCHA will remain an uphill struggle for the COPFS, therefore determining the effectiveness of the CMCHA in Scotland remains an unanswered question.

Lindsay Robinson is a solicitor within Euan McSherry’s Regulatory Law team with an interest in Corporate Crime and Health and Safety offences.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Euan McSherry

Partner - Head of Real Estate Litigation (Scotland)

I provide litigation advice to clients in the retail, food and banking sectors. I am the first Scottish lawyer to be listed on the Register of RICS Accredited Mediators.