Deaths in the workplace are something which not alone cause personal grief and suffering but can also lead to unwanted adverse publicity and prosecutions for the companies involved.
HSA statistics in respect of the period 2006-2007 reveal that the number of work-related fatalities in 2007 was 67, compared with 51 fatalities in 2006. The Construction sector had the highest number of fatalities (18 compared with 13 in 2006). The fatality rate in the Construction sector increased to 5 fatalities per 100,000 workers in 2007, compared with a rate of 4.3 in 2006. However, the fatality rate in the Construction sector shows an overall reduction since 2002.
It is increasingly recognised that corporations should be subject to the criminal law in much the same way as individuals. However, corporate manslaughter, whereby a company is convicted of involuntary manslaughter, is notoriously difficult to sustain.
The common law position, whereby it is necessary to be able to identify the ‘directing mind of the company’ (in one of its directors) who must be found to have acted in such a ‘grossly negligent’ manner that they had the required mens rea for the offence of manslaughter, has led to enormous practical difficulties in securing convictions for corporate manslaughter.
Whilst this ‘identification of the directing mind’ of the company may be easier with smaller companies, the ability to identify one individual director or board member with the requisite degree of control over a company is harder with larger corporate entities and, arguably, the identification doctrine is least likely to work where it is needed the most. A larger number of deaths is likely to occur when the operational systems of a larger company fail, or the safety policies are inadequate, as the consequences can affect far more people. In People (DPP) v Cullagh1, a small business was convicted of manslaughter by gross negligence but in this case a single director was clearly in control of the undertaking.
In October 2005, the Law Reform Commission published its Report on Corporate Killing. The report provided a considered analysis of the issues relating to corporate killing and proposed the creation of two new statutory offences: a statutory offence of corporate manslaughter for corporate entities; and a secondary offence for corporate managers who play a role in the commission of the corporate offence. As of yet, there is no sign of either of these two proposed offences being introduced. However, the recent enactment in the UK of the Corporate Manslaughter and Corporate Homicide Act 2007 (which came into force in April 2008), may prompt this issue to be revisited here. In the absence of a statutory offence, greater reliance is placed on other legislative means to secure convictions in the case of workplace fatalities, such as section 80 of the Safety, Health and Welfare at Work Act 2005 (the “2005 Act”) and section 13 of the Non Fatal Offences Against the Person Act 1997 (the “1997 Act”).
Section 80 of the 2005 Act creates potential personal liability for directors and other managers of companies in circumstances where an offence has been committed by an undertaking2. The 2005 Act expanded the class of people who may be held personally liable to that of directors, managers or other similar officers within the undertaking or a person who purports to act in such a capacity. The 2005 Act also created a statutory presumption that those occupying certain positions are deemed to be responsible for the acts of the company. Under the 2005 Act, a director, manager, or other similar officer, or any person purporting to act in such a capacity will be deemed to be guilty of an offence under Section 80(2) where:
(a) an offence has been committed by the undertaking; and
(b) the duties of the person concerned included making decisions that, to a significant extent, could have affected the management of the undertaking;
unless that person can prove otherwise.
Prosecutions against individuals can also be taken under Section 13 of the 1997 Act which section has been, and will continue to be used, in the case of accidents at work. Section 13 provides that a prosecution may be taken against any person within an undertaking, occupying a managerial position or otherwise, where it can be shown that they have engaged in conduct which intentionally or negligently created a substantial risk of death or serious harm to another. In light of the above, it may be seen that the potential application of the Section 13 offence of “reckless endangerment” of the 1997 Act is significantly broader than under Section 80 of the 2007 Act.
There are no immediate indications that the Draft Corporate Manslaughter Bill 2005, as proposed by the Law Reform Commission based on the recommendations contained in its Report on Corporate Killing, will begin its path down the route to becoming legislation in the immediate future. That being the case, and in light of the difficulties highlighted above regarding the identification of the relevant ‘controlling minds’ of the company sufficient to take a common law prosecution for manslaughter, it is likely that prosecutions for workplace accidents and fatalities will continue to be taken under Section 13 of the 1997 Act against individuals within a company.
[Court of Criminal Appeal, March 15, 1999]
‘Undertaking’ is defined within the 2005 Act as meaning a person being an individual, a body corporate or an unincorporated body of persons engaged in the production, supply or distribution of goods or the provision of a service (whether carried on by him or her for profit or not)