Corporate Manslaughter Or Corporate Murder?

by Don Franks

In the wake of Pike River's killing of 29 coal miners, the Council of Trade Unions has called for corporate manslaughter to be a criminal offence.

Such an offence was legislated in the British Isles four years ago.

The Act making an offence of Corporate Manslaughter and Corporate Homicide came into force on 6 April 2008. It's called corporate manslaughter in England, Wales and Northern Ireland, and corporate homicide in Scotland.

There are no new duties or obligations under the Act, nor is the new offence part of health and safety law. It is, however, specifically linked to existing health and safety requirements.

Under the Act, health and safety legislation means "any statutory provision dealing with health and safety matters" and so includes transport (road, rail, river, sea, air) food safety and workplace safety.

Juries are required to consider breaches of health and safety legislation in determining liability of companies and other corporate bodies for corporate manslaughter/homicide. Juries may also consider whether a company or organisation has taken account of any appropriate health and safety guidance and the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such serious management failure or have produced tolerance of it.

The police will investigate suspected cases of corporate manslaughter/homicide. Prosecution decisions will be made by the state apparatus; Crown Prosecution Service (England and Wales), the Crown Office and Procurator Fiscal Service (Scotland) and the Director of Public Prosecutions (Northern Ireland).

The offence is concerned with corporate liability and does not apply to directors or other individuals who have a senior role in the company or organisation.

Penalties include unlimited fines, remedial orders and publicity orders. A remedial order requires a company or organisation to take steps to remedy any management failure that led to a death. The court can also impose an order requiring the company or organisation to publicise that it has been convicted of the offence, giving the details, the amount of any fine imposed and the terms of any remedial order made.

The first British conviction took place in March 2011, when Cotswold Geotechnical (Holdings) Ltd (“Cotswold”) became the first company to be convicted of corporate manslaughter under the Act.

On 8 September 2008, Alex Wright, a 27-year old junior geologist employed by Cotswold, was left working alone in a 3.5 metre deep trench, taking soil samples, when the unsupported soil walls of the trench collapsed and smothered him. He died of traumatic asphyxiation. Well-established industry guidelines state that such excavations and trial pits, if indeed they are necessary at all, should only be a maximum of 1.2 metres deep. Lawyer Kate Leonard, said “Alex Wright was a young man, full of promise. His death is a tragedy for all those who loved him and would never have happened if Cotswold Geotechnical Holdings had properly protected him”.

Others involved in the case were "properly protected". The prosecution dropped a separate case brought against Cotswold’s sole director, Peter Eaton, in his own right, for the manslaughter of Mr Wright, due to Mr Eaton’s poor health.

Cotswold’s conviction for the corporate manslaughter of Mr Wright goes some way to show how the courts are approaching such prosecutions. Convicted of Corporate manslaughter, Cotswold were fined £385,000, payable over ten years, given the company’s poor financial state. This was despite the Sentencing Guidelines Council’s recommendation that the appropriate fine for corporate manslaughter convictions should seldom be less than £500,000

British experience suggests that the charge of corporate manslaughter carries no guarantee of justice in capitalist courts. I would still support such a law's introduction to New Zealand, as a small recognition of capitalism's constant mortal threat to workers.I would argue for the charge to be Corporate Murder, with life imprisonment for a convicted CEO.

ENDS

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