Corporate manslaughter: making work a much safer place

Gary Slapper

In law, small cases often mark major milestones. When the prosecution of Cotswold Geotechnical Holdings begins next week at Stroud Magistrates’ Court, a new chapter in English law will begin. It will be the first case brought under the Corporate Manslaughter and Corporate Homicide Act 2007 and it signifies a new approach to prosecuting companies for alleged crimes.

The case concerns the death of Alexander Wright, 27, a geologist, who was taking soil samples from a pit that had been excavated as part of a site survey when the sides collapsed, crushing him.

The first chapter of corporate manslaughter law began on February 2, 1965, but it was rather an empty one. The Times reported what was then an innovation in English law: a company had stood trial for manslaughter. Glanville Evans, a 27-year-old welder, had been killed when the bridge at Boughrood that he was demolishing collapsed and he fell into the River Wye. The company had evidently been reckless in instructing him to work in a perilous way but an attempt to convict it for manslaughter at Glamorgan Assizes failed on the evidence.

Nonetheless, the court accepted that a company could be prosecuted for manslaughter. A new crime was recognised. Since then more than 40,000 people have been killed at work or in commercial disasters, such as those involving ferries and trains, while prosecutions for corporate manslaughter have totalled just 38.

The old common law made it very difficult to prosecute companies because the doctrine of identification required the prosecution to pin all the blame on at least one director whose will was identified as the “mind” of the company. As companies commonly had responsibility for safety matters distributed across more than one directorial portfolio, pinning all the blame on one person was difficult. Various directors claimed to know only a fragment of the lethal danger that materialised. It was not permissible to incriminate the company by aggregating the fragmented faults of several directors.

The new law aims to criminalise corporate killing without the need to find all the blame in one individual. The offence is committed where an organisation owes a duty to take reasonable care for a person’s safety but the way in which its business has been “managed or organised” amounts to a gross breach of that duty and causes death.

The law says that, for a conviction, a “substantial element” of the gross negligence must come from “senior management” (as opposed to a maverick worker) but any company trying to evade the law by not making safety the responsibility of a senior manager would, by virtue of that very stratagem, be open to legal attack.

Companies convicted of manslaughter can be made to publicise their wrongdoing in the national press and are subject to an unlimited fine. The Sentencing Advisory Panel has suggested a level of fine of between 2.5 and 10 per cent of a convicted company’s average annual turnover during the three years before the offence. This is a dramatic change. Most large companies convicted of fatal safety crimes are now fined at a level that is less than one 700th of annual turnover.

Directors can be prosecuted for safety offences alongside a corporate manslaughter prosecution and the Health and Safety (Offences) Act 2008 has widened the range of offences for which prison is a possible punishment.

The new corporate manslaughter law obliges the jury to consider whether a company is guilty by looking at what happened in the context of general safety law. Jurors are also invited to consider how far the evidence shows that there were “attitudes, policies, systems or accepted practices within the organisation” that were likely to have encouraged the safety failures that resulted in death.

Historically, the law was chiselled to govern individuals accused of homicide and it could not properly be adapted to prosecute corporations. That became more problematic once companies became so powerful — of the world’s 100 largest economic entities today, 49 are countries and 51 are companies. Having corporate citizens that are more powerful than governments is a challenge for good social governance.

Globally, more people are killed each year at work or through commercial enterprise — more than two million — than die in wars. If the Act works well in the United Kingdom it will be a good template to be adopted in other countries, and that would confer a substantial social benefit.

The author is Professor of Law and Director of Law at the Open University, and a door tenant at 36 Bedford Row. His book How the Law Works is published by HarperCollins