In the recent case of R v Maidstone and Tonbridge Wells NHS Trust, corporate manslaughter charges were thrown out by Mr. Coulson J after agreeing with the defence that there was no case to answer. Notwithstanding the decision, the Judge went onto provide some very useful and interesting indications for what is required in a corporate manslaughter prosecution.
Although a large company has yet to be prosecuted under the Act, the Judge provided a potential gateway whereby if the way in which the company is run (the attitude, systems, practices), these failures being corporate/senior management issues and any failures being either by commission or omission, reflecting on the ground practice, this could potentially marry the senior management failures with the causation of a death, and a prosecution could be successful providing such failures are deemed to be gross.
By way of sentencing under the new guidelines, Monavon Construction Limited, pleaded guilty to two counts of Corporate Manslaughter and one count under section 3 of the Health and Safety at Work Etc Act. This followed the deaths of two members of the public who in the early hours of the morning and in the midst of an altercation fell a distance of 3.7 metres into a light well on a construction site that had been inadequately fenced. The company was fined £250,000 for each of the two corporate manslaughter charges.
Having heard the relevant opening and mitigation HHJ Worsley QC accepted that the risk of injury from falling into an improperly guarded and covered light well was highly foreseeable. The steps that ought to have been taken by the company to safeguard against the risk were straightforward and the failure resulted in the death of two individuals. As such he placed the offence within category A
As regards the financial status of the company he accepted from the accounts provided that Monavon were a micro organisation with a turnover of much less than £2 million. HHJ Worsley was quite clear in his considerations that the level of fine should have a real economic impact as envisaged within the guidelines.
In relation to mitigating features HHJ addressed the lack of previous prosecution against the Company good safety record and the remedial steps taken post accident.
Regrettably the Judge gave no explanation as to how he approached the credit that should be awarded to the defendant company for entering guilty pleas and simply applied a reduction of £50,000 for each charge of corporate manslaughter.
The prosecution had approached the sentencing exercise on the basis that one needed to look separately at both offences and fine for each. The Judge however took the view that he need only concentrate on the more serious offence and then adjust the fine to take into account the lesser offence which had been charged.
Interestingly, the Judge also imposed a publicity order requiring the company to publicise that it has been convicted of the offence, giving the details, and the amount of any fine imposed.
However, in the third conviction under the new sentencing guidelines, a West Midlands skip company and its manager were found guilty of corporate and gross negligence manslaughter respectively after a worker fell eight feet (nearly 2.5 metres) to his death off the top of a skip.
The company, now in liquidation, was fined £600,000 and its manager, Bikram Singh Mahli, was given a two year suspended jail sentence after being found guilty of the manslaughter.
An employee had been rearranging ‘green waste’ or garden rubbish for compression in and around two large skips, which were only accessible by a metal ladder on the side. At the same time, his boss, Bikram Singh Mahli, 44, had been operating a JCB excavator to compress their contents.
The court heard how the JCB had been in very poor condition and was in ‘very close proximity’ to where the employee had been working on the day of the incident. It was found that there were no measures on site to prevent machinery making contact with pedestrians. There was also no system in place to report or record any incidents. The court was told that there was also no one at the site with any expertise or training in health and safety.
The Manager was duly found guilty of gross negligence manslaughter. He was also charged with breaching Section 37 of the HSWA, which he pleaded guilty to at the start of trial, he was sentenced to two years in prison, suspended for two years ordered to pay costs of £10,000 and banned from being a director of a company for ten years.
This case is the archetypal corporate manslaughter prosecution with the paradigm of a Senior Manager being on the ground being convicted of Gross Negligence Manslaughter and s37 allied to a small company being convicted for CM with the evidence of serious, wide and systemic failings. With respect to sentencing on the facts, this appears to be a Category A Corporate Manslaughter offence based on the foreseeability of serious injury, the level below the requisite standards the company fell and the perpetual failings, thus placing the company at the higher end of the category (up to 800,000) for an offence of this nature. Interestingly there was no leeway for the fact the company remains in liquidation.