The law moves slowly – 24 years too slowly

Herald of Free Enterprise

Almost 3 years after this photograph was taken in Dover, on the cold evening of 6 March 1987, the Herald of Free Enterprise sailed from Zeebrugge bound for Dover with 459 passengers and 80 crew. Tragically the roll-on-roll-off ferry was designed for the Dover-Calais run, so in order to use Zeebrugge its bow ballast tanks were flooded to lower the car decks to reach the Zeebrugge ramps. The combination of this nose-down attitude and sailing with its bow doors still open resulted in the Herald taking on a mass of water shortly after it cleared the Zeebrugge harbour and in a matter of less than a minute capsizing. Only the fact that it capsized onto a sandbank prevented the ship sinking completely. 193 people died, many not by drowning but by hypothermia, trapped in the ship in water that was only 2-3°C.

The report of the Wreck Commissioner, Mr Justice Steen, makes grim reading. He found:

All concerned in management, from the members of the Board of Directors down to the junior superintendents, were guilty of fault in that all must be regarded as sharing responsibility for the failure of management. From top to bottom the body corporate was infected with the disease of sloppiness.

This led eventually to the prosecution of P&O European Ferries (Dover) Limited, formerly Townsend Thorensen, and five individuals for corporate manslaughter. Despite the clear failings within the company, the prosecution failed as Mr Justice Turner directed the jury not to convict ([1991] 93 Cr App R 72 (Central Criminal Court)). In order to convict the company of manslaughter under the identification principle that applied at the time, one of the individual defendants who could be “identified” with the company as its “controlling mind” would have had to have been guilty of manslaughter (see Bolton (Engineering) Co. v. Graham [1957] 1 QB 159, per Denning LJ, affirmed by the House of Lords in Tesco Supermarkets Ltd v. Nattrass [1972] AC 153). As this was not the case, the company could not be found guilty.

This was clearly unsatisfactory. Early critics, such as Professor Gary Slapper at the Open University, argued that the courts should adopt the aggregation principle, whereby a company could be found guilty of manslaughter where the combined fault of the directors and officers making up its “controlling mind” can be aggregated, rather than any one individual having the necessary intent for manslaughter.

However, on 15 February 2011 Cotswold Geotechnical (Holdings) Limited were the first company to be successfully prosecuted for corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007. The Act came into force on 6 April 2008. The prosecution followed the death of Alex Wright, a 27-years-old geologist, on 5 September 2008. He was taking soil samples from the bottom of an unsupported 3.5 metre trial pit that collapsed on him, burying and asphyxiating him. Industry practice calls for all trial pits of over 1.2 metres depth to be shored and supported. Mr Justice Field sentenced the company at the Winchester Crown Court to a fine of £385,000, which was more than its annual turnover. He therefore ordered that the company pay the fine at a rate of £38,000 per year. The company was convicted under the following provisions of the Act:

1   The Offence

(1)   An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised-

(a)   causes a person’s death, and

(b)   amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

(3)   An organisation is guilty of an offence under this section only if the way in which its activitieis are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1).

As someone who first considered a career in law as a result of qualifying as a health and safety officer, I am pleased that at last we appear to have a workable corporate manslaughter law. It has only taken 24 years.

Whilst this extreme form of deterrence is not an ideal way to promote health and safety, measures such as this will become more important as the Health and Safety Executive loses over a third of its funding under the October 2010 Comprehensive Spending Review. This will lead to cuts in the number of proactive inspections, and inevitably a fall in prosecutions under the Health & Safety at Work etc. Act 1974. The last full year fatal accident statistics, for 2009/10, show that Great Britain has a good record, with a steady decreasing trend in the fatal accident rate. None of us wants to see this trend reversed.

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