Can the punishment ever really fit the crime?

On February 16, Cotswold Geotechnical Holdings was the first company in the UK to be convicted of the new offence of corporate manslaughter which came into force in April 2008.

The case was brought following the death of a 27-year-old geologist, Alex Wright, who was investigating soil conditions when a deep, unsupported trench on a development plot in Stroud collapsed onto him in September 2008. The firm was sentenced at Winchester Crown Court and was fined £385,000 payable over 10 years.

We hope that this conviction will make firms with a lax approach to safety take action to put their own houses in order. The fine was imposed keeping in mind the size of the company which only employed 12 people. Had the organisation been larger the fine would undoubtedly been very much higher. But nonetheless it ought to make less safety conscious firms – both large and small – sit up and think.

The new corporate manslaughter offence was introduced to close a gap in the law and to make it possible to prosecute organisations for unlawful killing due to gross corporate failings. Up until three years ago fatal accidents due to corporate negligence – particularly in large organisations where it was difficult to identify a “controlling mind” – could only really be dealt with effectively under health and safety law, i.e. for a breach of the organisation’s duty to control risks to health and safety.

Given that this first case involved a needless death in a smaller firm, we will not see the full potential of the law and its associated penalties until there is a successful prosecution of a larger organisation. But it should still prompt those in senior positions in all types of organisation to check that their own house is in order.

On the other hand, the Corporate Manslaughter and Corporate Homicide Act is designed to bring prosecutions in the very worst cases resulting in work-related death – those in which health and safety standards have fallen far below what could have been reasonably expected. So if directors can assure themselves that their health and safety management systems are effective they have much less to fear.

It is important to remember that it is not individuals who are liable under this law. Prosecutions for corporate manslaughter will consider management systems and practices across the whole organisation. But the behaviour of those in senior positions will be scrutinised closely and a substantial part of the health and safety failure must have been at a senior level.

Penalties can include unlimited fines, remedial orders and publicity orders imposed on the business. But it should be noted that corporate manslaughter prosecutions can be run alongside others for health and safety offences and these can include the prosecution of directors for “consent, connivance and neglect”.

When the Government’s Sentencing Advisory Panel (SAP), chaired by Professor Andrew Ashworth, consulted back in 2009 on new sentencing guidelines to accompany CM, I highlighted some of the dilemmas involved. They wanted views on how best to use the sentencing provisions in the new Act to promote consistency while also properly reflecting the seriousness of the offending involved.

One of the things I drew attention to at the time was the spill-over effect that large fines may have, punishing not just the organisation but also indirectly its employees (for example, through possible consequential job losses), its shareholders (who in reality may have had little or no control of management processes that led to the deaths concerned), its customers (who might be made to bear the cost of subsequent price increases) or the workforce and the wider public who might continue to be at unacceptable risk because funds for improving safety had been used to pay a large fine.

It was Lord Thurlow, an 18th century Lord Chancellor, who opined famously that organisations have “no soul to be damned and no body to be kicked”. I am no lawyer but to me the idea of a crime that is purely corporate – a collective offence due to the failure of many otherwise generally blameless individuals – is as strange as it is rare.

Punish an organisation and you do end up punishing real people, if only indirectly – and then quite often the wrong people. Yet organisations are owned by, are made up of, and are controlled by real people, often in positions of authority. Obviously there is no one-size-fits-all solution and the sentencing options in the CMA do seem to offer the option of “mixing and matching” fines, adverse publicity and remediation. There is a particular problem with publically owned organisations where fines simply represent a re-circulation of funds back to the Treasury.

So is there not also a case for imposing penalties such as prohibition of individuals from being directors; restricting their bonuses for a fixed period, or suspension of senior managers without pay? Other options might include: imposing suspended sentences pending remedial action such as undergoing health and safety training or some sort of penalty point system as on the driver’s licence model; fixed penalty notices for specific offences; or perhaps some sort of Community Service Order linked to health and safety.

What’s your view? Can punishment really be made to fit the crime when people and the organisations they inhabit have got it very badly wrong on health and safety?

Roger Bibbings

Occupational Safety Adviser

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