This is a chapter from Corporate Manslaughter and Corporate Homicide (Bloomsbury Professional), which is a practical guide to the laws surrounding manslaughter at work, and the implications of the corporate manslaughter legislation. Previously known as Corporate Killing: A Managers’ Guide to Legal Compliance, the 2nd edition of this popular book outlines the effects of the corporate manslaughter legislation on companies, and offers authoritative advice to help you fully understand a company’s legal responsibilities. Coverage new to this edition includes the Hampton Review; recent major corporate manslaughter cases and disasters; and key information on the Corporate Manslaughter Bill 2005 and the Corporate Manslaughter and Corporate Homicide Act 2007. This book enables practitioners to advise directors or senior managers wishing to take ownership of health and safety issues and to ensure that they avoid the possibility of a manslaughter prosecution.
Table of Contents
3.1 There are demands from the public for the use of the law to charge corporations with manslaughter at work offences. However, there is also evidence that public opinion considers it wrong if all the blame is placed on a junior employee. If it is the directors who determine the operational philosophy as the controlling minds and have the most to gain from the corporation, then they should carry the overall responsibility.
3.2 The following cases are an example of small company manslaughter prosecution and show where custodial sentences have been awarded. In some cases the defendant actually spends time in prison, while in others the sentence is suspended. This means that the defendant does not go to prison and providing he does not offend during the period of the suspension he will not go to prison. The whole subject of manslaughter prosecution is fraught with problems. Many cases are seen to be similar, but one results in a manslaughter conviction while another has an outcome where there is a minimal fine.
3.3 For many years it had been thought that a corporation could not be guilty of manslaughter, because the law of homicide required the killing of a human being to be the outcome of an act by another human being. On this basis Justice Finlay in Cory Bros Ltd (1927) (see below) made the decision to quash an indictment against a company for manslaughter. It was clear that he found himself bound by earlier authorities, which he concluded, showed quite clearly that an indictment would not lie against a corporation for a case involving personal violence. This case was, however, decided before the principle of identification was developed.
3.4 The case of Cory Bros Ltd was an interesting case in that it was a private prosecution brought by the deceased's brother through the South Wales Miners' Federation. The basis of the case involved the directors of a private mining company, who during the miners strike of 1926, erected a fence around a power house belonging to the company. It was intended to provide protection against pilfering by strikers and their families, but to make the fence totally effective it was electrified.
3.5 The deceased was an unemployed miner, who was scavenging close to the fence when he fell against it and was electrocuted. The South Wales Miners' Federation determined that the company and three of its engineers had set a predetermined mantrap and supported the private prosecution against them for manslaughter. Committal proceedings against the company and the engineers were successful but the outcome was to determine that the law did not allow an indictment to lie against a corporation. The charges against the three individual engineers remained. They were prosecuted but were acquitted.
3.6 It was to be some 38 years before another case of corporate manslaughter was to reach the courts. During this time the attitudes of the courts changed and were highlighted in the case of Northern Strip Mining Constructions Co Ltd. The case involved a welder-burner who was drowned when a railway bridge, which the company was demolishing, collapsed. Employees had been instructed to burn down sections of the bridge, starting in its middle. At trial the defendant company was acquitted on the facts of the case, but neither counsel nor the presiding judge appeared to have any doubt about the validity of the indictment; and the defence counsel seems to have concurred with those opinions. It was reported that the judge argued that it was the prosecution's task to show that the defendant company, in the person of the managing director, was guilty of such a degree of negligence that it amounted to a reckless disregard for the life and limbs of his workmen. There does not seem to be any report of the argument or of the judge's reasons. It is the identification principle that has been the key factor to corporate manslaughter offences and the reason for failure to obtain convictions.
3.7 The most important case in the development of a corporate offence for manslaughter occurred with the first conviction in English legal history of a company for corporate manslaughter. The case is R v OLL Ltd and Peter Bayliss Kite, heard in Winchester Crown Court, which was more commonly known as the Lyme Bay canoe tragedy. It is an interesting case in that it identifies management failure to ensure a safe activity, leading to a conviction for gross negligence manslaughter, when evidence showed that warnings about safety had been given.
3.8 The company, known as Active Learning and Leisure Limited and which operated as a leisure centre at St Alban's Centre in Lyme Regis, was charged with corporate manslaughter and as a result of the trial, convicted of that offence. The corporate structure was that Mr Kite was the managing director, and Mr Stoddart was the manager. Therefore the company was a one man operation so the directing mind was that of its managing director and the company's liability came from the 'directing mind' having formed the mens rea. A company can only act and be criminally responsible through its officers or those in a position of real responsibility in conducting the company's affairs. In other words if it is proved that some person or persons who were the controlling minds of the company were themselves in the case guilty of manslaughter then the company is likewise guilty.
3.9 The outcome was that on 8 December 1994 Peter Kite was found guilty of individual manslaughter and jailed for three years. The case against the Lyme Bay centre manager Joe Stoddart was dropped when the jury failed to reach a verdict. The company, OLL Limited, was convicted of corporate manslaughter and fined £60,000.
3.10 The incident involved a group of sixth form students from the Southway Comprehensive school in Plymouth who were participants in an activity holiday at the St Albans Challenge Centre at Lyme Regis. Canoeing was among the range of activities that were available to the students and, as part of the introduction to the activity, the party was given a half-hour basic instruction with canoes in the swimming pool. The following day members of the party decided which activities they wanted to do and eight pupils and one teacher decided to go canoeing. Two instructors, one male and one female, neither of whom were qualified to teach canoeing, accompanied this group of novices. Each participant was provided with a wetsuit and life jacket, but no foot or head wear. The day's activity plan was basic and involved paddling from Lyme Regis to Charmouth and back, a journey to be undertaken at sea.
3.11 At about 10.00 am the party set off and soon encountered problems. One of the students' canoes capsized and it required the male instructor to right the craft and help the student back into it. The teacher then capsized and required the male instructor to assist in recovery of the canoe and help the teacher back into the canoe. During this incident, the female instructor directed the others to raft up in a line so making a more controlled and stable group. However, the group was drifting out to sea and the wind had increased causing the waves to get bigger, all adding to the students' problems. They then became seasick which in turn caused distress, and added to the very evident concern as to their situation. While they did what they could to help one another, the problems developed rapidly with canoes capsizing and depositing the students in the cold water, clinging to the upturned craft.
3.12 The group was in serious trouble and because of a management failure, they had no method of raising the alarm. Nobody onshore was aware of any possible problems and so the hours passed with the youngsters in the water, cold, tired and distressed. In an act of desperation two students decided to swim to shore and as events unfolded were the last to be rescued. The male instructor and teacher were located some eight miles down the coast, having been in the sea for seven hours. The main group was rescued two and a half miles from the nearest coast. The final outcome was that four of the youngsters died as a result of the tragedy.
3.13 Mr Peter Kite, the managing director of Active Learning and Leisure Ltd, the operators of the centre, had failed to ensure the safety of the group. He had been notified in writing by previous employees of the failings in safety procedures and equipment. The ill-fated group had gone to sea, with very limited instruction, unqualified instructors, and no flares for alerting the coastguard, no emergency plan and no support boat. The students had not been taught how to work their life jackets; nor were they told to inflate them when they were in the water. The situation was compounded when the group failed to return, and the management delayed in alerting the rescue services.
3.14 The prosecution alleged that Kite, as the managing director of OLL Ltd, had the primary responsibility for devising, instituting, enforcing and maintaining an appropriate safety policy and was therefore responsible for the safety standards at the centre which were found to be deficient. By way of industry standards it was said that the defendants had breached guidelines issued by the British Canoe Union.
3.15 Reliance during the case was placed on a brochure published by OLL Ltd and it was submitted at the trial that the judge did not give the jury the guidance that they could expect in relation to the relevance of the brochure. The prosecution also relied on the letter written by Miss Cawthorne and Mr Retallick, previous instructors with OLL Ltd, and the facts of that letter are quoted in part:
'At present we are walking a very fine line between getting away with it and having a very serious incident … We would also like to know why we do not get supplied with a first-aid kit and tow-line … It's unsafe and not organised … having seen your 1993 brochure and planned expansion, we think you should have a very careful look at your standards of safety, otherwise you might find yourselves trying to explain why someone's son or daughter, will not be coming home. Nobody wishes or wants that to happen, but it will sooner or later.'
3.16 It was Mr Kite's case, through his evidence, that he took that letter seriously, and had acted upon the contents. The report identifies that the letter was written in 1992 and, consequently, it might not provide very useful evidence as to the situation as it was in March 1993. In fact it could be argued that it would be very good evidence because if notice had been taken and the concerns actioned, then a safe system of working would have been in place. It was identified in the evidence that Mr Kite had made considerable efforts to comply with the complaints that were raised, and that substantial changes had taken place. It again could be argued that the changes were not suitable and sufficient, particularly based upon the evidence that convicted Mr Kite.
3.17 In addition to those matters the prosecution alleged that Mr Kite had failed to supervise Mr Stoddart which, as the controlling mind of the company, he was expected to do. Expert evidence was called by the prosecution, and a number of criticisms were made including, in particular, the lack of experience and suitability of Mr Mann and Miss Gardner as instructors to lead the canoeing expedition.
3.18 Mr Kite gave evidence on his own behalf and he stated the he was responsible for overall policy and money matters, but left the actual day-to-day operational running of the centre to the manager, Mr Stoddart. He went on to state that he had absolutely no knowledge that novices were taking part in sea activities, and was horrified when he heard that they were and that this accident had occurred. He further stated that he had immediately taken steps in relation to the Cawthorne letter and had fulfilled his duties in so far as he could in relation to safety precautions.
3.19 A crucial aspect to this case was the fact that Kite had personal knowledge of the safety failings which were referred to in court by Ognall J, who identified the letters sent to Mr Kite months before the tragedy by two competent instructors who had in fact left the centre because they were concerned about safety. The judge told Kite that it was obvious that what separated this case from others was the fact that warnings were given in cold clear terms as to the way he was operating and the potentially fatal consequences of failing to act. It was pointed out that those warnings became reality because of his complete failure to take action and that there was evidence that he was, in part, more interested in sales than safety.
3.20 On 8 December 1994, at Winchester Crown Court, after a trial lasting three weeks, Peter Kite was convicted by a majority verdict on four counts of manslaughter and sentenced to three years' imprisonment on each count concurrently.
3.21 There was never any suggestion that Mr Kite was directly responsible for what occurred on 22 March 1993 because he was not present, but it was his failure to provide a suitable health and safety system that rendered him guilty of the offence. When the judge had passed sentence on Mr Kite he stated that beyond doubt the matters were so serious that they demanded a sentence of immediate custody, and of some substance. While the fact that a term of imprisonment was imposed on Mr Kite as the controlling mind was not in question, what was in question, and the subject of the appeal, was whether in all the circumstances of the case, was a sentence of three years' imprisonment too long. It was recognised that court proceedings involving health and safety failings generally cause great difficulties because the court has to make a balanced judgment between two extreme positions. There is the situation when people have been killed through a workplace accident and in particular when the lives of young people have been lost. It is therefore, very natural for the families of the deceased to take the view that no sentence can be too long in the light of what has happened. The opposite situation is where there is an individual who has been convicted of serious offences, where he had no criminal intent, but will not readily understand why he has been sent to prison.
3.22 Peter Kite appealed against his sentence of three years' imprisonment for manslaughter, for his part in the Lyme Bay tragedy. Interesting issues were raised by the defence in respect to mitigation in manslaughter at work cases. His appeal was referred to the Court of Appeal.
3.23 With regard to the management failure it is important to define the charge that was laid which was one of manslaughter and that of unlawful killing which although there were nine people in the party, excluding centre staff, the charge was brought against only one person.
3.24 The details of the gross negligence case against Mr Kite were based on the absence of a safe system of operating at the centre, on failing to take notice of the letter from former employees, who made complaints about the absence of safety, and on his failure to adequately supervise the manager. The evidence raised the point that Kite was not directly responsible for the canoeing activities that formed the fatal incident, which was the allegation made by the prosecution against Stoddart, the manager, who was jointly charged with Kite. However, the jury disagreed, and the prosecution decided not to continue the case against Stoddart.
3.25 In the summing up in the Court of Appeal it was recognised that Mr Kite was aged 46 and a man of previously impeccable character. Any prison sentence imposed on a man in these circumstances is, of course, devastating to him. Nonetheless, the facts quite clearly demanded a substantial sentence. Taking those matters of a personal nature together with the facts as proved, the court was persuaded that the sentence imposed by the learned judge was too long. It was proposed to substitute for the sentence of three years' imprisonment one of two years' imprisonment on each count to run concurrently.
3.26 Criminal intent is an interesting issue in health and safety cases. The Health and Safety at Work etc Act 1974 (HSWA 1974) requires every employer to ensure the health and safety of those in his employment and those not in his employment but who could be affected by his activities. The Management of Health and Safety at Work Regulations 1992 define more explicitly the requirements of managing health and safety. If an individual or corporation disregards the prescribed legislation and Approved Codes of Practice (ACoPs), then it could be described as intentional and therefore be a criminal act, albeit not in the normal publicly accepted criminal context. It is the task of the court and in particular the jury to determine whether a particular case is one of gross negligence and that is what is often most difficult. In this case the jury came to the conclusion that Mr Kite's conduct was that of gross negligence and found that he was criminally liable, and he was convicted on the basis of his negligence.
3.27 Following the success of the Lyme Bay case Jackson Transport (Ossett) Limited was convicted in 1996 of corporate manslaughter and fined £22,000. Its director, Alan Jackson, was convicted of the individual manslaughter of one of his employees and jailed for 12 months and fined £1,500. The case centred on 21-year-old James Hodgson, an employee of the company, who died less than an hour after being splashed with a deadly chemical while cleaning the inside of a chemical tanker at Jackson Transport's base in West Ossett, Yorkshire. Mr Hodgson was carrying out the dangerous cleaning job protected only by a pair of overalls and a baseball cap. Special suits for protection against chemical risks were only provided to the tanker drivers of the vehicles and the protective suits that were available on the company's premises were in poor condition and there were no hats, visors or goggles.
3.28 The trial judge, Mr Gerald Coles QC, determined that if Alan Jackson did address the subject of safety clothing he failed to do so adequately. The fact that the deceased was not concerned to wear safety clothing made it all the more important that his employer should have made sure that he not only had it, but that he wore it. This is an important issue, in that not only does the employer have a duty to provide adequate and suitable personal protective equipment, he has to ensure that it is used and used correctly. In this case the judge found that Jackson was totally indifferent to his statutory duties in that: (i) he failed to address the issues of a system of safety; (ii) he failed to take precautions against inevitable disasters; and (iii) the failure to provide a safe system of work was only the last in a long catalogue of deficiencies.
3.29 Reporting on the case Jolliffe provides details of the summing up of the case where the judge said:
'If you did address your mind to the subject of safety clothing you failed to do so adequately. The fact that the deceased was not concerned to wear safety clothing made it all the more important that you should have made sure that he not only had it, but that he wore it.'
He further stated:
'I'm afraid you were at most, totally indifferent to your statutory duties … you failed to address your mind to any real system of safety and you failed to take precautions against inevitable disasters … the failure to provide a safe system of work was only the last in a long catalogue of deficiencies.'
Apart from the failings outlined by the judge in the lack of personal protective equipment (PPE), there were no trained first-aiders, nor was there first-aid equipment provided by the company. There were no procedures to ensure safe entry to the tank or rescue equipment for use in an emergency. It was ironic that the failings were made worse in that the company had drawn up a manual detailing safe methods of cleaning out tankers. That manual had been produced six years before Hodgson's death and had been put in a drawer and forgotten. However, the management had identified the hazards and associated risks and failed to implement a safe system of work.
3.30 'Construction Company Guilty of Corporate Manslaughter', was the headline of a Health and Safety Executive (HSE) Press Notice. English Brothers Ltd, a construction company, was convicted as a result of a prosecution brought by the Crown Prosecution Service (CPS). The fatality involved Bill Larkman who was employed as a gang foreman for the erection of an onion store on a farm, The Crofts, Newton, near Wisbech in Cambridgeshire. Mr Larkman was working on the roof in June 1999 when the accident occurred. Although there were no witnesses to the actual incident it was thought that he lost his footing when roofing material slipped causing him to fall more than eight metres to his death. The seriousness of the incident was enhanced because a HSE inspector had found Mr Larkman on another site working without the correct safety equipment. The matter was taken up with the company who agreed to remedy the problem, but they failed to take any action. This failure meant that the incident occurred not as an oversight but as a failure of management to take action. That failure amounted to gross negligence with the consequence of a manslaughter prosecution. Melvyn Hubbard, a director of the company was also charged with manslaughter, but after the company pleaded guilty to manslaughter, those charges were not proceeded with. The company was fined £25,000 for manslaughter. In addition there was a fine of £5,000 for an offence under HSWA 1974, s 3 for failing to ensure the health and safety of people not in its employment. The company was also ordered to pay prosecution costs of £12,500. The financial penalty against the company was said to have amounted to one year's profits for the organisation.
3.31 The successes and failings of these cases highlight the fact that there are key elements that form the basis of establishing a manslaughter at work prosecution. Under the current homicide law it is doubtful if a successful case could be brought against a large corporation. The evidence shows that the directors of P&O European Ferries (Dover) Ltd had prior knowledge that the company fell short in its safety culture, failed to do anything about it and yet were not held liable under the law as it was at the time. In the case of Great Western Trains, Judge Scott Baker could not identify an individual controlling mind responsible for health and safety in the company. (See Chapter 2 for these cases.)
3.32 In October 2002, the company, Dennis Clothier and Sons, and one of its directors, Julian Clothier, were found guilty of the manslaughter of Stephen Hayfield. He died in November 2000 when he was hit by a 20-tonne trailer which was owned by the company. The Court heard that the trailer became detached from a tractor because it was dangerously loaded and the hitch mechanism connecting the trailer to the tractor was 'badly worn'. Mr Clothier was responsible for the maintenance on the company's vehicles and he should have noticed the defect which was 'obvious to the naked eye'. The court heard farm worker Mr Burrows had been trying to tow the trailer loaded with straw and weighing the equivalent of two double-decker buses up a steep country lane. As the tractor struggled up the hill, the hitch mechanism connecting the tractor to the trailer failed under the strain. Mr Hayfield was in his car sheltering from the rain while on a fishing trip in the Mendip Hills and it is thought that he must have seen the trailer careering down the hill towards him and he decided to abandon his car. That decision to abandon his car cost him his life because he stumbled as he tried to escape and was struck by the trailer as it veered towards him.
In December 2002, Julian Clothier was sentenced to 240 hours' community service. However, his conviction for manslaughter was quashed by the Court of Appeal.
3.33 During a claim for compensation the High Court in London heard that Mr Hayfield led an active and normal life despite having slightly shorter than normal arms and fingers and one leg shorter than the other. There was a dispute over damages centred on the life expectancy and work potential of Mr Hayfield, who was a thalidomide victim. He had worked as an engraver and was a father of three. David Clarke J approved the award of £425,000 against the firm, which had admitted liability.
'It was disappointing … that the family of Stephen Hayfield found themselves fighting a battle to prove that having a disability does not always preclude one from enjoying an active, normal life, from raising a family and contributing to society. If this result can go just a small way to changing the public misconception of thalidomide victims and other individuals under a disability, then Stephen will not have died in vain.'
3.35 Teglgaard Hardwood (UK) Ltd and one of its directors, John Horner, pleaded guilty to the manslaughter of an 18-year-old labourer. Christopher Longrigg died when a nine-metre stack of timber fell on him on 26 April 2000 whilst he was working for the company at a shipyard in Hessle. Mr Horner was standing next to the teenager, who suffered massive head injuries and was killed instantly, when he was hit by the timber which had not been stacked properly. It had broken loose from its metal ties and collapsed like a toppling building.
3.36 The court heard that the company had paid scant regard to even the most basic health and safety precautions and had not assessed the risks to employees. When sentencing, the judge commented on the 'callous indifference' of company director John Horner. He was given a 15-month prison sentence, suspended for two years, and his firm, Teglgaard Hardwood UK was fined £25,000.
3.37 Nationwide Heating Systems Ltd was found guilty of manslaughter and Alan Mark, 45, the managing director was convicted of manslaughter and jailed for 12 months after Ben Pinkham, a young apprentice, was killed in a boatyard explosion. Mark had persuaded Princess Yachts that he was a suitable contractor to do the job of cleaning a resin storage tank, despite limited experience. His risk assessment did not mention acetone would be used to clean the tank.
3.38 Mr Pinkham, of Saltash, Cornwall, was working at the boat manufacturer's in Plymouth when the explosion occurred in February 2003. He was using a highly flammable solvent to clean a resin storage tank at the Princess Yachts International yard but had not been warned about the dangers of using the chemical in a confined space. On the day of the incident he was suspended from a harness inside the tank and had knocked over a halogen light he was using. There was an explosion and smoke and flames came from the tank. He died in hospital six days after suffering 90% burns in the explosion.
'The life of a young man has been needlessly lost in a terrible way. This case must be viewed as a warning to all employers to pay rigorous and robust attention to matters of safety.'
Steel J continued:
'Princess Yachts had left quantities of acetone in open buckets with no warnings on them.'
Princess Yachts International, which had pleaded guilty at an earlier hearing to two health and safety offences, was fined £90,000 with £10,000 prosecution costs.
3.40 Following joint investigation by the HSE and the police, Roger Jackson, trading as Easy Moss, was charged with manslaughter following the death of an employee. John Speight had learning difficulties and was employed under a scheme for the disabled. He was helping to transfer waste into a skip by being lifted in an unsecured former platform luggage trolley by a forklift truck. The trolley fell off the forks, crushing his abdomen beneath the steel cage and he died several days later. Jackson pleaded not guilty to the health and safety charges but changed his plea to guilty during the trial. On 3 March 2000 Jackson was convicted of manslaughter and received a 12-month prison sentence. The judge was in no doubt that he should impose the sentence but suspended it for two years for fear that the business might fail, putting 18 people out of work. Jackson was fined £5,000 under HSWA 1974, s 2 and £5,000 under HSWA 1974, s 3 and ordered to pay £25,000 prosecution costs.
3.41 The managing director of Harper Building Contractors Ltd, a small construction company, was jailed for 16 months for the manslaughter of an employee. Daryl Arnold was killed after falling through a roof light in an incident that would have been avoided had his employer followed simple HSE guidance. The incident occurred on 11 June 2003 during the removal and replacement of a warehouse roof. The work was being carried out by Harper Building Contractors Ltd. Arnold was working with other Harper employees on the roof when he stepped backwards onto a fragile roof light on an adjoining warehouse. The roof light gave way and he fell 6.75 metres onto the ground floor sustaining fatal head injuries. The company's sole director, Lee Harper, had not prepared a safe system of work before the work began. There were no safety precautions or equipment in place at the time of the incident and he failed to provide its workers with any health and safety training. Harper himself had no knowledge of health and safety rules, and Arnold had no previous experience of working on a roof.
McComb J said the company's standards 'fell far below' the level he would expect. The charges against the company remain on file because it is in liquidation.
3.42 Glen Hawkins, a garage manager branded by the judge as a health and safety 'dinosaur', was sentenced to nine months' imprisonment for the manslaughter of an 18-year-old worker who died in a petrol explosion. On the day of the accident, Murphy was helping his manager, Glen Hawkins, to empty a mixture of petrol and diesel from a dustbin into a waste-oil disposal tank on the forecourt. The incident occurred when fuel vapour was sucked into a flue pipe outlet from a gas boiler situated next to the tank. As a result, the vapour ignited, causing an explosion that engulfed Murphy in flames. Murphy suffered 60% burns and died of his injuries four days later. Glen Hawkins and his father Howard Hawkins, the owner of the garage, failed to put in place a safe system of work for handling and draining fuel. The fuel was drained close to a source of ignition, left overnight in an open dustbin, and emptied into a waste-oil tank allowing flammable vapour to accumulate and create an explosion risk. Glen Hawkins said that he was not present when the accident happened and had relied on his mechanics to carry out the work safely.
'To say that you were complacent about health and safety is an understatement. You regarded health and safety as a tiresome intrusion into your business and a matter of common sense that you could leave to your mechanics. Being a dinosaur can sometimes be endearing, but not on health and safety matters.'
Glen Hawkins was jailed for nine months for the manslaughter of Lewis Murphy. Meanwhile, Howard Hawkins was fined £10,000 under HSWA 1974, s 2(1), and ordered to pay £15,000 costs.
3.44 Glen Hawkins was freed after the Court of Appeal ruled that a statement made by him should not have been admitted as evidence because it was prejudicial. Lord Justice Pill said that the statement was made to the police in the immediate aftermath of the accident, when Hawkins was in pain, under the influence of morphine and in a state of shock. He added that because of the time that Hawkins has already spent in prison, no retrial would be allowed.
3.45 Simon Jones, a 25 year old student at Sussex University, was killed on 24 April 1998 within two hours of commencing a job at Shoreham docks, West Sussex. He was employed by a Dutch owned company Euromin, a stevedore company. Jones was sent as casual labour to a job at the docks by an employment agency. He was tasked with attaching bags of cobblestones to hooks which had been welded to the inside of the open grab. The conventional method would have been to attach a hook to the crane but employees stated that the company was reluctant to change the crane from grab to hook and back again because it cost time and money. Jones received only a few minutes training and no health and safety briefing. As work progressed the crane driver pulled the wrong lever in the crane cab and the two-tonne grab closed, partially severing his head. The crane driver and Mr Martell, the manager of the company were arrested but released without charge. The CPS decided that there was insufficient evidence to prosecute for manslaughter, which resulted in a campaign to have that decision reversed. The Director of Public Prosecutions, David Calvert-Smith, ordered a judicial review which ruled that the CPS should reconsider its earlier decision not to prosecute. As a result of the review he announced on 19 December 2000 that there was sufficient evidence to charge Martell with manslaughter through gross negligence. After nearly three years summonses were issued against Richard Martell and Euromin.
3.46 The trial of Euromin Ltd and Richard Martell was held at the Old Bailey and on 29 November 2001 the company was found guilty of two breaches of the HSWA 1974. The company was ordered to pay fines of £50,000 and costs of £20,000. Richard Martell was cleared of manslaughter. The outcome increased calls for changes to the law in respect to manslaughter at work. David Calvert-Smith, QC said:
'Employees like Simon Jones should be able to carry out their work in a safe environment free from the fear of death or serious injury'.
He confirmed the problems encountered with prosecuting companies with corporate manslaughter and called for immediate changes to the law.
3.47 On 16 September 2005 Paul White was sentenced to 12 months in prison, a £30,000 fine and ordered to pay costs of £55,000 at Norwich Crown Court after admitting a charge of manslaughter. The incident involved the company MW White Ltd, of Ketteringham. Mr White, the managing director, was charged with the offence following the death of his employee Kevin Arnup on 22 December 2003. Mr Arnup was a foreman at MW White Ltd's premises near Wymondham in Norfolk and died after being fatally injured by a 'paper hogger' machine. The HSE, supporting the police in the investigation, found bad working practices, and malfunctioning machinery. The machine which killed Kevin was malfunctioning because of a build-up of dirt inside it. It should have been fitted with an isolator to make it safe whilst members of staff were working on it, but this part was never fitted and so the paper shredder was essentially running with the cabinet open which then allowed dust and debris to build up inside, causing it to eventually malfunction. Sentencing White the judge said the safety breaches were 'chronic'. Norwich Crown Court heard that the machine started up as Mr Arnup was inside it trying to clear a blockage. There was no lock off on the 'paper hogger' and the emergency stop button did not work. Addressing White, Bell J said:
'It must have been obvious to you that if the hogger started up during the operation when anyone was in the chamber it was really inevitable they would have been killed'.
The failure was made worse because to have prevented this accident would have cost less than £100.
3.48 The Court of Appeal, in October 2002, quashed the conviction of Brian Dean, the former owner of Brian Dean Demolition and Civil Engineers, who had been convicted in March of the manslaughter of two of his employees, Michael Redgate and his son Carl, who died in July 2000 when a kiln collapsed on top of them. The two men had been sent to demolish the disused kiln without proper instruction and with no previous experience of kiln demolition. The Court of Appeal however, ruled that the judge had failed to give proper directions to the jury on issues relating to causation and on the defence case. The manslaughter conviction was substituted by a health and safety offence.
3.49 Norman Cliffe (who traded as Nightingale Cleaning Services) and Justin Amos (who traded as Industrial Cleaning Services) were acquitted of the manslaughter of Glenn Whalley and Anthony Redfern who died in October 2000. They were burnt to death whilst cleaning Holmes Place health club in Nottingham. The men had been using unsuitable chemicals and had not been made aware of the dangers they faced. They died after the industrial chemicals they were using ignited. The two men pleaded guilty to two health and safety offences and were fined £5,000 and £2,500 respectively. Simon Construction Ltd, the main contractors, was convicted of two health and safety offences and fined a total of £40,000.
3.50 On 4 August 2006, Michael Shaw, managing director of Change of Style stone-cutting company was convicted of gross negligence manslaughter following the death of one of his employees. He originally denied the charge but changed his plea to that of guilty during the trial.
3.51 The case involved David Bail, an employee who suffered massive head injuries in the accident at the factory on 13 May 2003, when he was caught in a stone-cutting machine and crushed. The automated machine, which cut stone for kitchen worktops, had light sensors around it that immediately stopped it when a continuous light beam was broken. It also had hinged guards which, if lowered when the machine was working, would break a circuit and stop it. However, when the machine had been installed in 2000 the safety devices had been bypassed to make the machine more efficient, because if it was stopped it had to start the programme again every time which cost time and money.
3.52 Mark Dennis QC, prosecuting, told the jury at Winchester Crown Court that Michael Shaw and his 25-year-old son, Gavin, a fellow director, were responsible for the death of Mr Bail because they put 'profits before safety'. Shaw received a suspended two-year jail sentence which the judge said was his consideration of the consequences of a prison term on Shaw's other 25 employees. Shaw and his company were fined £70,000. Shaw's son and fellow director, Gavin Shaw, was fined £1,500 for one breach of health and safety legislation. He had earlier been cleared of a charge of manslaughter on the directions of the judge, due to the lack of evidence against him.
3.53 The CPS appealed against what was considered to be an 'unduly lenient' sentence for manslaughter. The original trial judge, in imposing the suspended sentence, took into account the fact that people would lose their jobs should Shaw be jailed. While the appeal judges agreed that this was a factor to be considered they held that it should not be a bar to sending someone guilty of such a serious offence to prison, and that the suspended sentence was 'unduly lenient', given the nature of the offence. They therefore jailed Michael Shaw for 15 months for the manslaughter of David Bail.
3.54 An article in Health and Safety Bulletin identifies that the 'aggravating' factors in the Change of Style and Shaw prosecutions were that:
the offences arose from Shaw's desire to put profit and productivity above safety;
Shaw had displayed insufficient regard for safety, even though he had been warned by the company's safety consultants;
the failures that led to the death were not an 'uncharacteristic exception'; the machines had been used in an unsafe and dangerous state for about five years;
Shaw failed to admit his guilt immediately, meaning that the witnesses and Bail's family had to endure the ordeal of a trial.
Shaw only changed his manslaughter plea after the jury had convicted him of the safety offences.
the HSE had served an improvement notice on Bavelloni, which was responsible for the installation and maintenance of the machine;
Change of Style's losses since the incident of around £200,000 (its turnover for the year before the incident (2002/03) was £1.64 million);
Shaw had cooperated with the HSE during the investigation and had taken steps to remedy deficiencies after they were drawn to his attention;
Shaw's otherwise good character, display of 'some remorse', health problems since the death, contribution to the community, and the effects of any prison sentence on him, which were likely to be 'devastating'.
The CPS appealed, claiming that a suspended sentence was too lenient. The Court of Appeal agreed and, on 4 October 2006, imposed an immediate 15-month custodial sentence, stating that suspension lacked a 'deterrent effect' and was 'wrong in principle'.
3.56 On the question of manslaughter at work it is not always straightforward as shown in the following case. At an inquest on 15 March 2005, a Coroners Court jury took less than ten minutes to reach a verdict of unlawful killing of Daniel Dennis who in 2003 fell through a skylight and died. It happened during his first week of work for the roofing company North Eastern Roofing when Dennis was sent up scaffolding on to the roof of a B&Q store in Cwmbran, Gwent during a re-cladding project. However, at the time of the incident he had not received any safety training from his employers, nor had he been given training for working at heights, and he was not wearing a safety harness.
3.57 Equally important was the fact that the skylight area had not been fenced off. The situation is further aggravated in that his father, Peter Dennis, had previously contacted the company and warned it that his son had not received any safety training and should not undertake any work at height.
3.58 Following the Coroners Court verdict the family made representations to the CPS to have a case brought in the criminal court; however, they were informed that gross negligence manslaughter charges would not be brought against anybody in the company.
A Judicial Review was pursued by the GMB union and Thompson's Solicitors in the High Court which was only the second time in legal history that the CPS has been brought to court in a workplace death case. This is a situation that exposes the CPS's lack of expertise in health and safety and gross negligence law and a lack of proactivity in investigating workplace death cases. It must also be remembered that the CPS are signatories of the workplace deaths protocol and have access to specialist investigators in the HSE.
'The grounds in support of this claim are arguable. There is also a public interest in having full argument in a case such as this, where the inquest jury found there to have been unlawful killing but [the CPS] has decided not to prosecute anyone.'
The findings of the High Court ruled that the Crown Prosecution Service (CPS) should review its decision not to bring corporate manslaughter charges against the employer of Daniel Dennis. It concluded that the way in which the CPS interpreted the evidence, including describing the finding of the inquest jury as 'perverse' and its apparent lack of understanding of health and safety law, should be looked at again.
3.60 There is no case outcome readily available but it does show the problems of inter-agency agreements: if they are used a case may proceed but if they are not there are problems. It follows that for there to be successful prosecutions for corporate manslaughter, organisations must work closely together.
3.61 Four workers were killed on the West Coast Main Line on 15 February 2004 when one of two three-tonne flatbed trailers, 'grossly overloaded' with 16 tonnes of scrap rail, ran away from a work site at Scout Green in Cumbria. The trailer ran at up to 40 miles an hour for three miles before hitting the men at Tebay.
3.62 The trailers belonged to MAC Machinery Services, which was owned by Mark Connolly. Following the deaths the investigation found that Connolly had, for financial gain, deliberately dismantled the trailers' braking systems. He had done this 'rather than repair the damage caused to the trailers by his earlier incompetent operations on the railways'. As a direct result of his greed and deceit and the connivance of his employee, Roy Kennett, who was well aware that there were no working brakes and that Connolly had used forged certificates of competence for his staff, the four men died.
3.63 At Newcastle Crown Court on 17 March 2006, Holland J jailed Connolly for nine years and Kennett for two years on four counts of manslaughter each. The sentence was appealed on the basis that the convictions were unsafe because the judge had misdirected the jury on issues such as what constituted a grossly negligent breach of duty and the cause of the accident. On 1 March 2007 May LJ, sitting with Butterfield and King JJ, dismissed the appeals on the basis that when looking at the matter as a whole they were satisfied that the convictions were safe because of the 'chain of causation' between Connolly's actions and the incident. However, the Court of Appeal reduced the manslaughter sentence imposed by two years because it was considered that nine years was 'rather too great'.
3.64 This is a small selection of cases where there was a workplace manslaughter prosecution involving individuals. It will be seen that the organisations are small and the prosecution was able to focus on the failings of an individual. It may also be considered that even with these cases that there are inconsistencies in the prosecution, trial and outcomes. This further strengthens the need for the legal processes to be consistent and the corporate manslaughter offence should clarify the situation.
 R v Cory Bros Ltd  1 KB 810; Law Commission 237 (1996).
 Northern Strip Mining Constructions Co Ltd, The Times 2, 4 and 5 February 1965.
 R v OLL Ltd (1994) unreported.
 SI 1992/2051.
 Jolliffe, 'Director jailed for indifference that killed 21-year old worker', Safety Management, December 1996.
 HSE Press Notice E140: 01, 3 August 2001.
 The Independent, 1 April 1999.
 The Independent, 20 December 2000.
 South Norfolk Advertiser, 17 June 2005.
 HSE Press Release EO97:02 May 2002.
 HSB, December, 2006, No 354.
 HSB No 358 May 2007.