R v P Limited arose out of a tragic warehouse accident when a six year old boy was thrown from a fork lift truck as it collided with a second truck which was carrying a large unclamped newspaper reel on the top of two other clamped reels. The practice was clearly dangerous.
The prosecution in the criminal trial alleged that Mr G, as managing director of the company and chairman of its strategic health and safety management committee, had ultimate responsibility for ensuring that the company employed safe systems of work. On that basis, the prosecution argued that he should be found guilty because the breaches by the company of its statutory duties were attributable to him by reason of his consent, connivance or neglect.
The judge at first instance was shown certain passages in the ruling given by Mr Justice MacKay in the prosecution of those alleged to have been responsible for the Hatfield rail crash. Based on what Mr Justice MacKay had said in that case, the judge concluded that the meaning of neglect must be construed in the sense of "turning a blind eye in circumstances where the defendant had suspicion or belief as to the material facts but because he feared the answer might be unpalatable did not want to know more." The judge went on to conclude that the test for neglect was a subjective one and "...not equivalent to inadvertence, laziness or even gross negligence".
In the Court of Appeal, Lord Justice Latham (the Vice President of the Court of Appeal Criminal Division) disagreed with this approach. He said it placed too high a burden on the prosecution. Citing with approval the earlier case of Wotherspoon v HM Advocate (1978), Lord Justice Latham concluded that, in those cases where there is no actual knowledge of the conduct giving rise to the offence by the company, the test should always be whether:
"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."
Conclusion
Acts of Parliament as diverse and important as the Environmental Protection Act and the Health & Safety at Work etc Act make it a criminal offence for a director, through "consent, connivance or neglect," to be associated with a criminal offence committed by a company.
The case of R v P Limited makes it clear that it is possible to bring a successful prosecution against a director of a company in respect of one of the "consent, connivance or neglect" offences without necessarily proving that the director concerned knew of the practice and/or of its dangers. If the evidence is sufficiently compelling that a director ought to have been put on enquiry as to the relevant practice, a successful prosecution for "neglect" is possible.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
