Corporate Manslaughter Conviction comparisons.

N.I.'s first successful Corporate Manslaughter Conviction (JMW Farms) was the largest fine ever in the history of health and safety law in the Province writes Andrew Bennett, Associate at Eversheds Solicitors.

FACTS OF THE CASE

The facts of the case were relatively straightforward and uncontested. Company Director of JMW Farms and lifelong friend of Mr Wilson (Mark Wright) was reversing a forklift truck with a large metal bin resting on the prongs of the truck. The bin fell from the truck on top of Mr Wilson causing fatal injuries. The Court heard that the joint Police and HSE investigation had evidence that this bin had not been attached to the truck and it was not possible to the lifting forks into the sleeves of the bin as the forks were too big and incorrectly spaced. This, in turn, was due to the truck being a replacement vehicle on loan while the usual truck was being serviced. Basic failures were made in not risk assessing the carrying of the bins with these replacement trucks, and it was clear that a reasonably practicable solution could have been produced to solve the safety issues involved in the case. In that sense, the incident and the tragic resulting death could have been preventable and the Judge (Belfast Recorder Judge Tom Burgess) said as much:

“Yet again the court is faced with an incident where common sense would have shown that a simple, reasonable and effective solution would have been available to prevent this tragedy.”

COMPARISON WITH COTSWOLD GEOTECHNICAL HOLDINGS LIMITED CORPORATE MANSLAUGHTER CONVICTION

The Corporate Manslaughter Act has only had one other successful conviction since it was introduced in April 2008 in England, Wales, and Northern Ireland. Although the facts of this case were very different (Cotswold Geotechnical involved the death of an employee from traumatic asphyxiation when a 3.5 metre trench caved in on top of the employee), both cases featured very basic safety failures (e.g. a failure to consider easily accessible industry guidance and/or conduct even a common sense risk assessment) which led to a tragic death of an employee. Both cases easily passed the first test under the Corporate Manslaughter Act stated below:

has the company fallen far below the relevant legal duty towards the deceased, causing the death? (i.e. has it committed a gross breach of health and safety law which has caused a death?)

Both cases involved relatively small companies where the Director was closely tied to the actual day to day operations of the companies. In Cotswold Geotechnical, the Director had been on site on the day of the incident and had left the workers to ‘finish up’ after he had gone home. In the JMW Farms case (as described above), it was the Company Director who was actually driving the vehicle from which the metal bin fell and hit Mr Wilson.

Therefore the second basic Corporate Manslaughter Act test (stated below) was easily satisfied in both cases:

has the attitudes, policies, systems and accepted practices within the organisation (as led by the senior management (either individuals/directors or a group of individuals)) contributed to the gross breach that has resulted in the death?

A DISPARITY IN FINES

Given the similarities in the cases, it is interesting to compare the fines given in both cases. In Cotswold Geotechnical, the company was fined £385,000 (without any costs being awarded against them) and ordered to pay this fine over a ten year period. The company had an annual turnover of just £300,000 in 2007. However, this fine was still significantly below the recommended starting point of £500,000 for corporate manslaughter cases as recommended by the Sentencing Guidelines published in February 2010. JMW Farms were fined £187,500 and ordered to pay £13,000 of the prosecutions’ costs when they had an annual turnover of approximately £1 million. Whilst there is no legal obligation for a Court to specifically link a fine to the turnover of a company, the guidelines do state that company accounts should be carefully considered when judging what will be the appropriate fine. Therefore, it could be argued that the fine given to JMW Farms can be seen as a low amount in the context of the Cotswold Geotechnical, the serious consequences that resulted from the Company's basic failures, and the Sentencing Guidelines. The fine was the largest in the history of Northern Irish health and safety cases and will undoubtedly make a strong statement to company directors in Northern Ireland, but there was nothing to stop the Judge from delivering a financial sentence that actually had the result of putting the company out of the business.

In another recent high profile health and safety case in Northern Ireland, Biffa Waste Services Limited were fined £60,000 under Article 4 of the Health and Safety at Work (Northern Ireland) Order 1978 and ordered to pay £20,000 in costs. In this case, an employee was discovered buried to death in a landfill site after going missing 30 hours earlier while operating a bulldozer. The case could not establish how the incident happened or whether the actions of the company actually caused the death, but the Court heard numerous examples of poor safety management policies, procedures, and attitudes at the company during the case. Biffa is based all around the UK and is a multi-million pound operation. Due to the dangerous nature of the sector in which it operates in, it has had similar incidents in other parts of the UK, but it has been fined much more heavily for these than the £60,000 it received in the Northern Ireland case. A simple observation seems to be that fines for health and safety cases in Northern Ireland do appear to be less than in the rest of the UK and the reason for this remains unclear.

THE FUTURE

The second prosecution in England under the Corporate Manslaughter Act is due to be heard this month. Alongside the company (Lion Steel Equipment Limited), three individual directors will face charges of gross negligence manslaughter. This follows a clear trend by the authorities in the UK to target individuals for health and safety offences. A leading health and safety magazine recently described how the number of senior managers individually prosecuted by the HSE had “rocketed by more than 400% in the last 5 years”. The Corporate Manslaughter Act has resulted in many organisations being subject to Police investigations over the last four years (even if very few companies have been prosecuted) and the information collected by the Police during these extensive investigations has often been passed to the HSE who then have chosen (on many occasions) to target individuals under section 37 of the Health and Safety at Work etc. Act 1974. Police investigations under Corporate Manslaughter must consider who are the senior managers in the relevant organisation, and what their level of involvement in the events leading to the death has been. In extreme cases, the Police may, themselves, pursue gross negligence manslaughter investigations and prosecutions against individual directors.

Therefore, while fines for health and safety cases in Northern Ireland can be viewed as low, the JMW Farms Corporate Manslaughter conviction will undoubtedly turn the spotlight on company directors and senior managers of all manufacturers in Northern Ireland. In the current economic climate, the conviction, sentencing (and potential imprisonment) of a wealthy senior manager or director as an alternative to punishing a manufacturer (and in effect its’ workforce) with a fine is an appealing prospect for any regulator, and those at the top of organisations should seek advice as to where there legal responsibilities towards health and safety begin and end.

For more information, please contact:

Andrew Bennett

Associate

Tel: 0845 497 6210

andrewbennett@eversheds.com