Gross Negligence Manslaughter

"Hands on" Company Directors beware! Sentencing trends in Gross Negligence Manslaughter Cases

For many years Trade Unionists have railed against the iniquitous criminal justice system whereby, despite up to 300 people being killed every year at work, only a handful of company directors have ever been successfully prosecuted and jailed for gross negligence manslaughter of their workers. The focus of their campaign has been to demand a Corporate Manslaughter Bill, now in its third reading before Parliament. Much of the bill's focus is to make a company potentially guilty of manslaughter if there is a senior management failure which causes a death. The definition of this failing and by whom are presently causing anxious debate in the committee stage of the bill's progress through Parliament. It is generally, however, understood that even if the bill is passed (and the Labour Government promised it nearly 10 years ago) it would only affect about 5 prosecutions each year.

A much more dramatic development in health and safety criminal law however went quietly unnoticed in the Court of Appeal last month in the case of The Attorney General's Reference No. 6 of 2006, which was heard on 4th October. This was an appeal by the Prosecution against suspended sentence of 2-years imprisonment imposed upon a company director called Michael Shaw. He ran a stone-cutting factory and a young employee of his, died in a tragic incident whilst working at this factory. He had been inadequately trained and was fatally injured by a large cutting machine.

Mr Shaw was a ‘hands on' company director who was regularly on the factory floor.

The firm owned three cutting machines which had been designed and installed by an Italian engineering company. A safety device to the machine omitted a beam of light the full length of the machine, if any worker entered the danger zone the beam of light would break and the machine would automatically stop. All three machines' safety device beam had been disabled by the Italian engineers when fitted because, when the machine stopped, it caused considerable disruption to the production process.

The deceased, as in so many of these cases, was young and unskilled, training was described as ‘in-house'. On the night of the death David Bail entered the danger zone to change a tool without stopping the programme. The machine head suddenly moved forward, trapping his head and causing catastrophic injuries.

The Trial Process

As is so common in health and safety cases, the trial was subject to enormous delay. Firstly and incredibly, the director was not interviewed for 6 months and had to wait another 12 months before charge and thereafter another 18 months before trial. The trial lasted about 3 weeks; the director's case seeking to apportion blame to others, principally the Italian engineers. The jury could not agree, but before a second trial could be fixed the Defendant changed his plea to one of guilty to the charge of manslaughter and Mr Justice Owen sentenced him to 2 years imprisonment, suspended for 2 years. He was a man of good character who had health difficulties and there was evidence that the company would close and employees lose their work if he were jailed. In short there was a good deal of mitigation. The Prosecution appealed on the basis of undue leniency.

The Court of Appeal's Approach

The significance of this judgment is that the Crown Court rejected the approach that a suspended sentence was appropriate in cases like this to save the jobs of other employees. In the judgment of the court, given by Sir Igor Judge at paragraph 36 he stated:
"If it were otherwise many small businesses dependent, as this one was, on a ‘hands-on boss' could operate without proper regard for the consequences of gross negligence resulting in death . . . and there would be no particular incentive on the bosses of most small organisations to see that health and safety measures were complied with.

The Court went on, despite the considerable mitigation, to impose an immediate sentence of 15 months imprisonment upon Mr Shaw, rejecting as they did any suggestion that there were exceptional circumstances within the mitigation, despite the delay, the health of Mr Shaw, his plea of guilty and the fact that in all likelihood the factory would close.

It may well be that this case is of far greater significance in seeing more company directors (albeit of small firms) imprisoned for gross negligence manslaughter than the current corporate manslaughter debate. The Court has certainly narrowed the meaning of exceptional circumstances in health and safety cases and has reflected that breaches of health and safety can be life and death issues and accordingly and implicitly see deterrent sentencing having an important role to play in the adherence of company directors to health and safety issues.

Patrick Cassidy and Alan Wilson: barristers at law

Patrick and Alan are both experience barristers who specialise in health and safety and are part of Kenworthy's Chambers Work Crime Team

If you would like to discuss any of the issues raised in this article then please contact 0345 872 6666.

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