REGULAR
“SHOULD JUDGES IMPOSE SENTENCES THAT REFLECT THE SERIOUSNESS OF THE OFFENCE OR THE ABILITY OF THE OFFENDING COMPANY TO PAY?”
is possible even in cases where the cause of the accident is the aggregate of failings across the business rather than specific and identifiable acts or omissions by the company’s senior management.
Arguably, the main purpose of the CMCHA was to remove the “identification principle” that generally applies to corporate criminal liability. Prior to the CMCHA, a conviction of the company was only possible if it could be demonstrated that someone representing the company’s “mind and will” (generally understood to be someone at main board level) was personally guilty of manslaughter. Despite this change in the law, in previous CMCHA prosecutions the allegations have included some involvement or knowledge by senior management in the failure resulting in the death.
Evidence of a failure in the way the company is managed by its senior management remains a requirement for a conviction. The significance of Sterecycle’s case is that it demonstrates that even where the company concerned is large and has many layers of management, a failure of that management which results in a death could form the basis of a prosecution for corporate manslaughter, even if no individual responsibility can be identified.
Sterecycle is the eighth company to be convicted of corporate manslaughter since CMCHA came into force in 2008, and the fourth to be convicted following a trial (the other four
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companies pleaded guilty). Two companies were acquitted following trials in 2014. The number of cases prosecuted has steadily increased since the Act came into force with the highest number of cases (five) in 2014.
It appears likely that in 2015 three or four further cases about which decisions to prosecute have already been made by the CPS will be concluded. Going forward, there are likely to be in the region of four or five prosecutions for corporate manslaughter per year. All of the cases coming up in 2015 fit the pattern of previous cases in terms of the size of the companies involved and industry sectors. All of the cases involve employee deaths.
“WHILE THE PENALTY FOR A COMPANY IS PRIMARILY FINANCIAL, INDIVIDUAL DEFENDANTS CONVICTED OF EITHER MANSLAUGHTER OR HEALTH AND SAFETY OFFENCES ARE AT RISK OF IMPRISONMENT.”
Alongside the company, three employees of Sterecycle were also charged with health and safety offences, though the prosecution discontinued these charges during the course of the trial. Individuals have been prosecuted for manslaughter or health and safety breaches alongside companies in a number of the corporate manslaughter prosecutions to date, which is a matter of great
significance for those concerned. While the penalty for a company is primarily financial (though the court may also impose Remedial and Publicity Orders), individual defendants convicted of either manslaughter or health and safety offences are at risk of imprisonment. Although none of the cases have resulted in such an outcome to date, it is surely only a matter of time before there is a case that does.
In summary, the Sterecycle prosecution fits the pattern of corporate manslaughter cases brought to date under CMCHA, a pattern that looks set to continue into 2015. The number of cases seems likely to continue at a rate of about three to five per year. Smaller companies are at much greater risk of prosecution, particularly those in sectors which historically have had higher accident rates.
Larger companies should not be complacent, however, as the Sterecycle case demonstrates, CMCHA can target prosecutions even where only limited responsibility lies with the senior management. Fines look likely to increase with the publication of new sentencing guidelines in 2015. And finally, prosecutors are likely to continue to target individuals alongside companies, and it is inevitable that at some stage this will result in a prison sentence.
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