The FCA – Transformation to Assertive Supervision
This blogs considers the recent corporate manslaughter conviction of Deco-Pak and two other recent corporate manslaughter cases, Bosley Mill and Aster Healthcare and what they tell us about the current approach to this offence.
In January 2022 a garden supplies firm, Deco-Pak was found guilty of corporate manslaughter following a fatal accident at the Deco-Pak premises in Hipperholme, West Yorkshire on 14 April 2017.
Andrew Tibbott, a 48 year old father of two, was fatally injured by a robotic packing arm at the premises when he attempted to clean a sensor on a machine. The robotic arm formed part of automated machinery used for bagging up products such as stone and slate. Mr Tibbott was discovered by his family who went to look for him after he did not return home from work.
An investigation into Mr Tibbott’s death resulted in the company being charged with corporate manslaughter, contrary to s.1 of the Corporate Manslaughter and Corporate Homicide Act 2007 (“CMCHA 2007”). In addition Deco-Pak’s director, Rodney Slater, was charged with gross negligence manslaughter and breaching the general duties under the Health and Safety (etc) at Work Act 1975. Managing Director Michael Hall was charged with gross negligence manslaughter.
At trial the prosecution alleged that after the machine was installed in 2015, Deco-Pak enabled key safety features to be bypassed or disabled. As a result, the prosecution stated, Mr Tibbott’s death was “wholly avoidable”. The jury found Deco-Pak guilty of corporate manslaughter. Rodney Slater was acquitted of both offences and the jury were unable to reach a verdict in the case of Michael Hall.
How easy is it to convict companies following a fatal incident?
Since s.1 CMCHA 2007 came into force on 6 April 2008 there have been fewer than 30 convictions, and between 2018 and 2021 those convictions only resulted from guilty pleas. In total there have fewer than 40 prosecutions for s.1 CMCHA 2007 offences brought since 2008.
So why is it seemingly so hard to prosecute for corporate manslaughter? The answer lies in what needs to be proved. Under s.1 CMCHA 2007 a relevant organisation is guilty of corporate manslaughter if they:
Significantly therefore, the offence does not require proof that an individual, who was the ‘directing mind and will’ of the organisation, was guilty of a crime (for example gross negligence manslaughter) in order for liability to be attributed to the organisation. Instead, an organisation can be held liable simply by how senior management ‘organised or managed its activities’. However, this does not necessarily make it easier to prove. Frequently there are a number of different factors which may have contributed to or caused the victim’s death and so it is often difficult to meet the threshold for causation. It is also not always possible to prove that the way in which senior management organised or managed the activities was a substantial element of the breach.
The recent case of R v Wood Limited Treatment is but one example of how difficult it can be to successfully prosecute an organisation for a s.1 CMCHA 2007 offence. This case concerned the tragic events at Bosley Mill in 2017 when a large explosion resulted in the death of four workers. The company, Wood Treatment Limited, was charged with corporate manslaughter. At the close of the prosecution’s case the defence made a successful submission of ‘no to case to answer’ – namely that the evidence, taken at its highest, was such that no jury could properly convict the company. This resulted in the jury being directed to return not guilty verdicts, a decision upheld on appeal.
Whilst prosecutions are rare and the evidential hurdles difficult to reach, where organisations are charged the consequences can be significant – as Aster Healthcare Ltd found in October 2021, when it was sentenced to a fine of £1.04m after pleading guilty to a corporate manslaughter charge. The prosecution arose following an incident in which a care home resident died after suffering 12% burns to her body from being bathed in too hot water. It was found that the company ignored repeated warnings regarding water temperatures and there were general systemic failings by senior management regarding their approach to health and safety and training.
For further information on the issues raised in this blog post, please contact a member of our corporate manslaughter and health and safety team.
Sophie Wood is a Senior Associate (Barrister) in our Criminal Litigation team with extensive experience in advising corporate and individual clients involved in a wide range of internal, criminal and regulatory investigations. Sophie has acted for individuals and companies involved in investigations brought by the Environment Agency, Health and Safety Executive and local authorities, and is a member of the firm’s cross-practice Health, Safety and Environment Group.
Brooke Glover is an Associate in the Criminal Litigation team with a range of experience advising individuals and corporate clients. Brooke represents clients on a wide range of general crime matters including allegations of serious violence and both historical and current sexual offences. In addition to this general crime work, Brooke acts for clients facing investigations and prosecutions brought by the Serious Fraud Office (SFO), HMRC and the Financial Conduct Authority (FCA).
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