Mind and will

Many will remember reports of the worst ever outbreak of Legionnaires’ disease in Barrow, Cumbria, in August 2002, which killed seven and infected nearly 200 others.

We now know that the source of the outbreak was the air-conditioning system at Forum 28 Arts Centre owned by Barrow council. The system was “far from being state-of-the-art” and, at the time of the incident, money was being sought for its restoration. But, said the prosecution, in proceedings against both the council and Gillian Beckingham, for manslaughter and breaches of the Health & Safety at Work etc Act (1974), the age of the system should have put the defendants on guard and was not an excuse for ignoring basic maintenance.

Beckingham was employed by the council as technical and design services manager in 1988. She was a qualified architect and her duties included management of the systems in the centre. Up to Beckingham’s appointment there was a contract in place for regular testing, chemical dosing and cleaning of the system, but she restructured the department and, it is argued, was “instrumental” in cancelling the relevant contract. After a gap of months, she put in place a new contract, but it did not include any water treatment regime for the cooling towers. It is alleged that she was repeatedly warned about the serious situation brewing – including the emergence of plumes of steam from the towers – but that she took no effective action.

At the beginning of this month she found herself in Preston Crown Court before a jury, accused of “negligence so gross that it was criminal”. Because she was “so far up the chain of command at the council”, the council is also being prosecuted. If the jury is satisfied that Beckingham behaved with such disregard for the lives of the deceased that her conduct is criminal, she may be imprisoned.

But what about the council? This is the first time a council has been charged with manslaughter in these circumstances. As such, the decision to prosecute is itself a landmark and follows a change in police procedures resulting in the police intervening in work-related deaths. The council faces unlimited fines if found guilty. But will it be?

Since the early 1990s, it has been possible to prosecute an employer for manslaughter. This was established in the P&O European Ferries case after the sinking of the Herald of Free Enterprise in March 1987. The directors of P&O were charged with unlawful killing. Although the case itself failed, it opened the door to prosecutions against firms if it could be shown the individual guilty of manslaughter was part of the “controlling mind” of the company. Therein lies the difficulty which led to the failure of the P&O case: it can be hard to identify a responsible and guilty company officer who is of sufficient seniority to be the “mind and will” of the company.

It is easier with smaller companies. In 1994 OLL Ltd was convicted of corporate manslaughter following a canoeing incident in Lyme Bay in March 1993, when four teenagers died. The managing director was convicted of manslaughter and given a custodial sentence. Since he was the sole director he was identified as the “controlling mind” of the company.

It is alleged that she was warned about the serious situation brewing but that she took no effective action

In other high-profile cases involving large firms, prosecutions have failed. The corporate manslaughter charge against the Great Western Train Company after the Southall train crash in September 1997 was thrown out. And in September 2004 the case against Railtrack for the Hatfield rail disaster also failed.

There have been repeated calls for tougher legislation by those such as the TWGU who claim that “business is getting away with murder”. A bill to deal with “management failures” resulting in death was announced in the last Queen’s Speech, but has now been deferred again.

So, much turns on the outcome of the Beckingham case. Was Beckingham – if guilty – sufficiently senior in the council to be treated as its “mind and will”? Or is she merely one of its servants?

The case continues.

Ann Minogue is a partner in solicitor Linklaters. Kirstin Warley, a professional support lawyer at Linklaters, was co-writer