Expert cautions against "complacency" as second UK company acquitted of corporate manslaughter

Out-Law News | 30 Jun 2014 | 12:14 pm | 2 min. read

Companies should not be complacent about the risk of prosecution for deaths caused by their failures despite the acquittal of the second company to face a corporate manslaughter charge, an expert has said.

Kevin Bridges of Pinsent Masons, the law firm behind Out-Law.com, was commenting after a jury at Swansea Crown Court found that both MNS Mining and one of its managers, Malcolm Fyfield, were not responsible for the deaths of four miners in November 2011. The men drowned when 650,000 gallons of water flooded the company's Gleison drift mine in the Swansea Valley after a controlled explosion. Fyfield faced separate common law charges of gross negligence manslaughter.

"The failure of this case will be another blow for the prosecutors, and some believe the evidential burden to secure a conviction simply remains too great to give the 2007 Corporate Manslaughter and Corporate Homicide Act any bite," he said. "That said, the offence is reserved for the most serious of failings and the evidential burden needs to be set at a level so that only the most serious offences and offenders are convicted."

"However, we caution against complacency. The issue in this case appears to have hinged on highly technical details and, interestingly, no alternative charges were brought. Charges under the 1974 Health and Safety at Work etc. Act – in terms of which employers commit an offence if they fail to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees – are often brought by prosecutors against employers as an alternative to corporate manslaughter. The absence of any alternative charge is unusual and meant the jury were unable to convict either defendant of a less serious health and safety offence," he said.

The 2007 Act was intended to make it easier for organisations to be held accountable for deaths caused by their failures. It provides that an organisation is guilty of corporate manslaughter if the way in which its activities were managerd or organised caused a person's death and amounted to a "gross breach" of a relevant duty of care owed by the organisation to the deceased. How the activities were managed or organised by senior management must be a substantial element of that gross breach.

Before the new regime came into force in 2008, companies and public bodies could only be found guilty of an offence if a senior figure acting as the company's 'controlling mind' was also guilty. Convicted organisations can receive an unlimited fine for the new offence, and can be required to publicise the fact that they have been convicted and provide details of thatconviction.

According to the BBC's report on the trial, Fyfield claimed to have inspected the mine to ensure that the men would not be in any danger the day before the explosion took place. However, the prosecution claimed that he had been warned about the existence of the underground water which flooded the mine after one of the deceased miners carried out a controlled explosion using multiple sets of explosives. In a witness statement, a geologist said that it was both "possible" and "probable" that the water could have collected after Fyfield had inspected the mine. Fyfield, who was in the mine at the time of the accident, also claimed that he had ordered single shots of explosives to be used.

"To amount to a gross breach, the conduct in question must fall far below that which could reasonably be expected in the circumstances," said Bridges. "There will be no liability, for example, where reasonable control measures are in place albeit a fatality still occurs. "To secure a conviction against an individual for gross negligence manslaughter, prosecutors have to show in effect that the accused has been flagrant or reckless in his conduct and that this led to the death - the mere fact that mistakes or errors of judgement occurred is not sufficient," he said.

Bridges said that there were currently two corporate prosecutions pending in the courts. The trials of Sterecycle (Rotherham) Ltd and Pyranha Mouldings Ltd are due to start in October and November 2014 respectively, he said.