Companies can frame mens rea through their management. Companies can commit eg theft, bribery and offences involving fraud. Companies cannot commit or be convicted of murder as there is a statutory sentence of life imprisonment and one cannot imprison a company. However, companies can be convicted of manslaughter. Leaving imprisonment aside, manslaughter can be punished by a fine. Successful prosecutions at common law have tended to be of small companies where the companies can be identified with the management/owners of the company. See for example R v Kite (1996) and R v Jackson Transport (Ossett) Ltd (1996).
At common law it seemed impossible to convict larger companies of manslaughter since the management could successfully argue that acts and omissions of lower ranking employees which contributed to the death were not the acts or omissions of the management. In the latter part of the 20th century there were many horrific transport disasters like the Southall rail crash (1997) and the Herald of Free Enterprise disaster off Zeebrugge (1987) where there were no successful prosecutions.
Against a background of disquiet and concern, the Law Commission consulted on the law of corporate manslaughter in Consultation Paper No.135 (1994). It recommended a new offence based on whether the company’s conduct fell significantly below what could reasonably be expected of it in the context of the significant risk of death or injury of which it should have been aware.
In a later report Legislating the Criminal Code: Involuntary Manslaughter (1996) (Law Commission Report No. 237), the Law Commission in its final report called for a new offence of corporate killing comparable to killing by gross negligence.
In spring 2005, the government issued a White Paper called Corporate Manslaughter: the Government’s Draft Bill for Reform (CM6497).
Ultimately the Corporate Manslaughter and Corporate Homicide Act 2007 emerged. It came into force on 6 April 2008 across the United Kingdom.
The Act sets out a new offence for convicting an organisation where there has been a gross failure in the way that activities were managed or organised, and those activities result in a person’s death.
The heart of the new offence lies in the requirement for a management failure, a substantial element of which must be a gross failure at a senior management level.
The sanction applied is a financial one – an unlimited fine (s1(6)).
Additionally, a remedial order may be made against a company requiring steps to be made by the company (s9).
By s10 of the Act, the court may make an order (a Publicity Order) requiring the organisation to publicise in a specified manner (a) the fact of conviction; (b) specified particulars of the offence; (c) the amount of any fine; and (d) any terms of any remedial order that has been made.
The number of charges of corporate manslaughter has gone up substantially since the Act was passed. However, to date there have only been three successful convictions. In R v Cotswold Geotechnical Holdings Ltd (2011), the company was found guilty of corporate manslaughter and fined £385,000, where a geologist working for the company was killed in a pit when its walls collapsed on him as he was taking soil samples.
In the second case, R v JMW Farms Ltd (Co. Armagh) was fined £187,000 in May 2012 over a forklift truck accident at a farm in Northern Ireland which resulted in a fatality. The truck was being driven by Mark Wright, one of the company’s directors, and Mr Wilson was killed after being hit by a metal bin which had fallen off the forklift truck. It was established that the bin had not been properly attached to the forklift truck.
The third successful prosecution of a company which was larger than Cotswold Geotechnical Holdings and JMW Farms occurred in R v Lion Steel Equipment Ltd (2012) before His Honour Judge Gilbart QC.
Lion Steel had pleaded guilty to the offence of corporate manslaughter arising from the death of Stephen Berry at the company’s premises in Hyde. Mr Berry fell some 30 metres to his death through a skylight in a roof. He had gone onto the roof to repair a leak.
The company was fined £480,000 in relation to the offence. It was given an extended period for payment of the fine and costs (up to three years).
Clearly the climate has changed in relation to prosecutions for corporate manslaughter since the 2007 Act. In 2012, 63 new corporate manslaughter cases were opened compared with 45 in 2011. The new Act which provides the definition of corporate manslaughter as gross failure on the part of management leading to death should make it easier to establish guilt on the part of companies.
However, difficulties still remain. Corporate manslaughter cases can take a long time to come to trial. The judge in R v Lion Steel criticised the four years that it had taken the prosecution to get the case to court. A successful prosecution of a larger company is still awaited but the new law should make this easier to accomplish.
This piece was written by Nicholas Bourne, LLB, LLM, Barrister-at-law.