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The Crown Prosecution Service ("CPS") has recently announced that corporate manslaughter charges are to be brought against a mining company. This is the latest in a growing number of prosecutions brought under the Corporate Manslaughter Act 2007 ("the Act"). After a slow start, the new Act is now providing the basis for criminal prosecutions of companies which fail their health and safety duties. In this article, Rhys Griffiths and Alexandra Hulme explain the facts of this new prosecution, the law of corporate manslaughter and what companies ought to be doing to minimise the risk of prosecution.
MNS Mining Ltd ("MNS")
In September 2011 four men tragically died following a flash flood in a coal mineshaft in the Swansea Valley. The men became trapped and died, despite the efforts of police, firefighters and mines and caves rescue experts. The mine was owned by MNS, was known to flood frequently and regularly had to be pumped out to allow miners to enter the pit.
The manager of the mine has been charged with four counts of gross negligence manslaughter. MNS has also been charged with four counts of corporate manslaughter under the Act. It is alleged that MNS caused the deaths of the four men by failing to ensure that a safe system of working was in place. This was as a direct result of the way in which MNS's activities were managed or organised by its senior management, particularly the mine manager.
A representative of MNS and the mine manager are due to appear at Neath magistrates' court on 1 February 2013.
The Act
The Act provides that a company will be guilty of corporate manslaughter if: (a) the way in which its activities are managed or organised by its senior management causes a person's death; and (b) this amounts to a gross breach of a duty of care owed by the company to that person. There is no liability for individuals under the Act but they can be charged in an individual capacity for gross negligence manslaughter.
The factors a jury will take into account when deciding whether the breach is "gross" includes whether the organisation failed to comply with any health and safety legislation, how serious that failure was and how much of a risk of death it posed. The jury may also consider and take into account the safety culture of the organisation.
The sentence for a company found guilty will typically be a fine and there is no limit to the amount of the fine. The courts also have the power to impose remedial orders (an order that the company changes a working practice), publicity orders (an order that the company publicises the fact of its conviction), compensation orders, prosecution costs orders and a victim surcharge.
Prosecution
The CPS will apply two tests in any particular case to decide whether to bring charges. The first is the evidential test, which asks if there is sufficient evidence for there to be a realistic prospect of conviction. The second test requires that the prosecution be in the public interest.
On 18 January 2013 the CPS announced that it had concluded that there is sufficient evidence and that it is in the public interest to charge the manager of the mine with four counts of gross negligence manslaughter and the company itself with four counts of corporate manslaughter.
Practical steps
There are a number of practical steps which companies can take to minimise the risk of prosecution under the Act. In particular, ensuring the following:
- The formulation and regular review of a written health and safety policy.
- Regular risk assessments to identify and manage the source of risks to employees and members of the public.
- Clearly defined roles and responsibilities for safety matters – from the board down.
- Proper and adequate training.
- The appointment of a member of the board with overall responsibility for health and safety.
- Regular reports to the board on matters concerning health and safety.
- A process for monitoring the effectiveness of the health and safety system and reviewing and amending it as appropriate.
If you would like to discuss these issues further with Rhys Griffiths then please do not hesitate to contact him.