Corporate Manslaughter Convictions, Directors and Companies
There have now been five Corporate Manslaughter convictions since the Corporate Manslaughter and Corporate Homicide Act 2007 was implemented.
The fifth Corporate Manslaughter Conviction brought us to consider the relationship between the convictions, the directors and the companies and the recent pattern that seems to have emerged.
There have been five Corporate Manslaughter convictions since the Corporate Manslaughter and Corporate Homicide Act 2007 was implemented. These are the following:
- Cotswold Geotechnical Ltd – fined £385,000 in 2011
- JMW Farms – fined 187,500 plus £13,000 in costs in 2012
- Lion Steel Ltd – fined £485,000 plus £84,000 in costs in 2012
- J Murray & Son Ltd – fined £100,000 plus £10,000 in 2013
- Princes Sporting Club – fined £34,579.69 plus £100,000 in 2013
Of the above cases, all but JMW Farms had Directors charged with either section 37 of the Health and Safety at Work etc Act 1974 or Gross Negligence Manslaughter. In all of those cases, no prosecutions against Directors have been successful.
In Cotswold Geotechnical, the Crown Prosecution Service brought a charge of manslaughter against Peter Eaton, the Company Director however he was terminally ill and unable to stand trial.
In Lion Steel, the Judge took the unexpected action of severing the cases involving the Director and the Health and Safety breaches from the Corporate Manslaughter case. Following a submission at the conclusion of the prosecution case, the cases of gross negligence manslaughter were dismissed against two of the directors. Following this, a decision was made by the company, with the agreement of the prosecution and the approval of the court, that the company would plead guilty to corporate manslaughter but that all remaining charges against the directors would be dropped.
In J Murray Son, the prosecution decided not to proceed with the charges against James Daniel Murray following the Company pleading Guilty.
In Princes Sporting Club, the prosecution also dropped the charges against the Company Director Fredrick Glen Walker following the Company’s Guilty plea.
So whilst there has been a 100% conviction rate so far, there has been a 100% failure rate of securing convictions against the Directors.
This figure of ‘failure’ is even more of an issue when you examine the fact that the two of the cases were challenged at the close of the prosecution case on the basis that there was ‘no case to answer’ and were successful. The cases have not just been dropped by the CPS following the Companies plea.
However, it does beg the question, are the CPS only bringing charges against directors to force the companies to plead guilty?
It is a successful ploy that has been used in the past when it came to husbands and wives, where charging the additional party puts pressure on the other to plead and let the other walk away. It could be argued that the directors and companies have a similarly entwined relationship as husbands and wives.
If this is going to be the CPS’s approach to cases it may be worth those who are not Directors but are involved in companies to start considering their own positions in these cases.
In the cases where the Director could effectively be argued to be the ‘controlling mind’ and walks free, leaving a company with a criminal record, a hefty fine to pay and reputation damage all of which could potentially cripple business, is there not a point where those who have invested in the business, other directors and even the employees should object to the ‘plea bargain’ taking place which enables the Directors to walk away? Could the business be saved from that reputational harm if the Director were to plead guilty?
With the possibility of a custodial sentence it seems unlikely that such an option would be given serious consideration by a director.
The ‘plea bargain’ can of course be put forward in the reverse to the CPS i.e. if a director pleads then the Company walk away. However, it may not be that successful unless that director steps down from their position within the Company and the company can adequately argue that it had very little to do with the outcome of the incident.
We say this because, in our view, the ‘controlling mind’ element would need to be removed from the picture successfully to entice the CPS and reduce the ‘public interest’ element in prosecuting the company.
In many cases it is the ‘company’ that has failed in some way or another due to multiple factors within it that have lead to the incident, whereas, unless the Director was expressly involved in the incident that lead to the death, it can be easier to argue away the element of ‘consent and connivance’ or ‘grossness of the negligence’ required for successful prosecution of the Directors with these charges.
We will continue to examine this issue and keep you updated as to the success of the Corporate Manslaughter cases that are currently in the pipelines.