July 1, 2014
Dr Alexandra Dobson, Reader in Law and Director of the Business Accountability and Responsibility Centre (BARC) at the University of South Wales, gives her expert comment on the inquiry into the Gleision Mining tragedy.
“The Gleision mining tragedy, in which four miners were killed in 2011 when a massive inrush of water flooded the mine where they were working, has finally reached a conclusion with not guilty verdicts for the mine manager, Malcolm Fyfield and the company who ran the mine, MNS Mining Ltd.
The tragedy emphasised the dangers for those working in the few small drift mines that still operate in Wales. While the criminal case has reached a conclusion, the announcement that the families of the victims are to take civil actions against MNS Mining Ltd raises interesting questions about the operation of the law more generally.
A further question raised by local MP Peter Hain in the wake of the acquittal – and which he says is largely unanswered by the trial – was why the men appeared to be working in areas known to contain underground reservoirs of water, and crucially why they were moving towards rather than away from the water. He has called for a full report from the Health and Safety Executive.
In terms of the criminal prosecution heard over several weeks at Swansea Crown Court, the case had two major elements. There was the individual prosecution of the mine manager who was at the scene and who was responsible for the safety of the four men working alongside him. In other words, the court and ultimately the jury examined the evidence from a criminal perspective to determine whether there had been gross failures in the duty of care which he [Malcolm Fyfield], owed to the men.
Prosecutions for gross negligence are not uncommon but guilt is not easy to establish.
As the judge Mr Justice Williams told the jury, the acts or omissions have to be flagrant, and exceptionally bad, for the conduct to amount to gross negligence. As the evidence progressed it became clear that Fyfield had inspected the mine and that the huge body of water that later flooded the mine was not apparent to him.
The second major element of the trial was the prosecution of the small family owned company, MNS Mining Ltd, for corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007. It is at this point that the law becomes more complex, as it is the company – an artificial legal personality – that is prosecuted, but it is the acts or omissions of senior management that are put under the spotlight in determining guilt. Therefore to find MNS Ltd guilty it had to be shown that the company was responsible for causing the death of the four men through a gross breach of a relevant duty of care, owed by the organisation to the deceased.
In order for the offence to be proven, an additional element was required and that was that the way in which senior management managed or organised the activities that led to the fatalities formed a substantial element in the breach of the duty of care. This leads us back to the acts or omissions of Malcolm Fyfield, the senior manager at the scene. If individual culpability on his part could not be established, then it was not possible for the jury to find MNS Mining Ltd guilty of the corporate offence. He effectively personified senior management.
The law on statutory corporate manslaughter is relatively new with only a handful of prosecutions since the Act became operative in 2008. All of the cases have been taken against small companies. This case does nothing to shed any light of the link between role of senior management and that of corporate liability for death. While the Crown Prosecution Service have defended their decision to prosecute, it is an example of yet another case where a small company has been prosecuted using legislation that was only ever designed to target large corporate bodies with complex structures. In the event it only took the jury just over two hours to exonerate both Malcolm Fyfield and MNS Mining Ltd.
Thompsons solicitors are now launching a civil action on behalf of the victim’s families. Under civil law, in contrast to criminal law, it is for the claimant to provide evidence, often described as on a balance of probabilities to show that a duty of care has been breached. This is different from the criminal law where the prosecution bears the burden, and must establish it to the level set at beyond reasonable doubt.
Both the criminal prosecution and the subsequent civil action form a major research area for the Business Accountability and Responsibility Centre.”