The effectiveness of the corporate manslaughter law and its relationship to health and safety legislation needs to be closely examined.
The acquittal of MNS Mining Ltd and mine manager Malcolm Fyfield in June on manslaughter charges following the deaths of four miners in 2011 has once again raised questions concerning the effectiveness of the law in providing justice. The local MP, Peter Hain, and the bereaved families voiced their upset after the jury’s decision that key questions remain unanswered.
The charges of corporate manslaughter against MNS Mining Ltd and gross negligence manslaughter against Malcolm Fyfield arose from the death of Charles Breslin, David Powell, Philip Hill and and Garry Jenkins at MNS’s Gleison drift mine in the Swansea valley in September 2011. The miners died when 650,000 gallons of water flooded the mine after a controlled explosion to connect two pits to improve ventilation.
In his summing up Mr Justice Williams, the most senior judge on the Welsh circuit, said the key decision for the jury was to determine whether Malcolm Fyfield had inspected the mine as he said he did: “It is for the prosecution to make you sure that he did not inspect as he said he did. If the prosecution has not convinced you... Mr Fyfield and MNS Mining cannot be found guilty. In that scenario both are entitled to be found not guilty of every count.”
The judge made clear that had Malcolm Fyfield made mistakes, or errors of judgement, even serious ones, this would not amount to gross negligence. The multi-million pound trial lasted three months and took evidence from 45 prosecution witnesses. The jury took a little over one hour to reach its verdict acquitting the company and the manager on each of four counts of manslaughter.
Prashant Popat QC of Henderson Chambers, who defended the company at the trial, commented in a LinkedIn discussion kicked off by Kevin Bridges of Pinsent Masons LLP, “the primary issue was ultimately narrowed to whether or not the prosecution could prove that the alleged inspection [by the mine manager] had not been carried out.”
He went on to pose the question that many will ask, that is, why charges were not also brought by the Crown Prosecution Service (CPS) under health and safety legislation. “I, of course, do not know for sure what was behind that decision but I suspect it was a tactical decision... including health and safety charges would have added another layer of complication for a jury to have to consider”, he said.
The jury was not asked to consider whether the deaths were preventable and whether the company had failed in its duty to ensure, as far as it is reasonably practicable, the health, safety and welfare of its employees. Yet again, in this case, as in the Lion Steel case, the CPS has balked at running the prosecution with parallel charges, that is, for manslaughter and for breach of health and safety law, possibly because of the complexity of having to satisfy different tests to prove guilt.
By any test most reasonable men and women would consider the circumstances leading to the deaths of the four miners sufficiently serious to merit criminal proceedings. There is a question for a jury to answer about the sudden inrush of 650,000 gallons of water following a controlled explosion underground being preventable. The detection of such a mass of water is well within the bounds of human understanding.
While questions remain on whether the objectives underlying the introduction of the corporate manslaughter law have been met, it is worth asking whether the CPS would have secured a conviction if it lowered its sights and pursued charges under the Health and Safety at Work Act.
The Ministry of Justice and the CPS need to look seriously at the effectiveness of the corporate manslaughter law, the relationship to health and safety legislation more widely and whether the law should be amended. The CPS said it was right to bring the prosecution and “ask the jury to determine the question of guilt or innocence.” Regrettably the jury was being asked to determine guilt or innocence on matters of criminal law even judges and lawyers are struggling to comprehend.
Neal Stone is director of policy and communications at the British Safety Council
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