I posted a blog a little while back on the subject of corporate manslaughter which seemed to provoke a lot of interest not least from the Japanese broadcasters NHK who were researching a documentary on the subject. More recently I posted another piece on the scope for a finding under English Law that directors of a company owe an actionable duty of care to others to prevent harm. I promised in that blog to follow up with another focusing more generally on the criminal law regime with respect to directors’ duties in relation to health and safety and indeed beyond.
The key statutory provision here is Section 37 of the Health and Safety at Work Act 1974. This Section imposes liability on those responsible for directing and managing companies which are found to have breached certain provisions of the Act. It provides that such a person shall himself commit an offence if he allows the company to commit an offence “… with his consent and/or connivance and/or by his neglect”. What do those words mean? In particular, to what extent does the term “neglect” equate to the modern concept of negligence?
The question received Court of Appeal scrutiny a few years ago in the case of Regina v E. . That case concerned a tragic accident at the docks where a 6 year old boy was thrown from a forklift truck on which he was being carried as a passenger when it collided with a second truck. It seems that this practice was quite common in the docks at the time. The company and its managing director were prosecuted on the basis that being carried as a passenger on a forklift truck was obviously dangerous. It was alleged that the managing director of the company who also chaired its strategic health and safety management committee was guilty of the same offence as the company by reason of his “consent or connivance or neglect”.
The interesting point with which the Court of Appeal had to grapple was to what extent was it necessary for the prosecution to demonstrate that the managing director knew of the practice of allowing passengers to ride on forklift trucks and failed to take steps to prevent it. So far as the “neglect” ingredient of the offence was concerned, the Judge at first instance said it was necessary to show that the defendant had suspicion or belief as to the material facts but that, because he feared the answer might be unpalatable, he did not want to know more. He concluded that it was a “…subjective test and not equivalent to inadvertence, laziness or even gross negligence…” If that were the right approach it would have brought the concept of “neglect”, in effect, very close to that of “consent or connivance”.
The Court of Appeal rejected that conclusion and stated that it placed the burden on the prosecution too high. It pointed out that the Act contains no requirement that the “neglect” be “wilful”. Instead, the Court concluded as follows:
“The officer in question of the company should have, by reason of the surrounding circumstances, been put on enquiry so as to require him to have taken steps to determine whether or not the appropriate safety procedures were in place.”
In 2009 The House of Lords had to consider a very similar question also under Section 37 of the Act but this time in connection with the death of a dumper truck driver. Perhaps unhelpfully, the House of Lords held that the circumstances would vary from case to case and that no fixed rule could be laid down as to what the prosecution must identify and prove in order to establish that an officer’s state of mind amounted to consent, connivance or neglect. According to Lord Hope:
“In some cases, as where the officer’s place of activity was remote from the workplace or what was done there was not under his immediate direction and control, this may require the leading of quite detailed evidence… In others, where the officer was in day to day contact with what was done there, very little more may be needed.”
What this seems to boil down to is that, where a statute creating a criminal offence contemplates a particular risk, and a company fails to prevent that risk from occurring, it will be relatively easy to infer that there was neglect on the part of an officer if the circumstances under which the risk arose were under the direction or control of that officer. The more remote the officer’s area of responsibility from those circumstances, the harder it will be to draw such an inference.
That’s all very well and may lead directors of larger companies towards the conclusion that they are less likely to be prosecuted on the basis that they are sufficiently distant from the cause of any harm to fail a “direction and control” test and hence escape liability. I’m not sure that would be a safe conclusion to draw. As the courts have made clear, this is an area where the particular facts really matter. Could “consent” include, for example, participation in a board meeting where a relevant decision is taken? Are there circumstances in which a director would be required to resign in order to show that they had not “connived “at an offence? How far are directors entitled to rely on information provided to them by those they manage without being guilty of “neglect”? There are no easy answers here and the task of predicting and assessing the potential liability of senior managers for corporate incidents causing harm to others remains a challenging one.