An overview of corporate manslaughter

ARTICLE

About Corporate Manslaughter

Prior to the 6th of April 2008 in the UK, it was possible for a company to be prosecuted for a wide range of criminal offences, including gross negligence manslaughter (GNM). It was, however, necessary to show a senior individual was the ‘controlling mind’ that led to and caused the death in the workplace. This was difficult in practice to show.

On the 6th of April 2008, the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA 2007) came into force. This was now a new offence where companies could be charged for causing deaths in the workplace. Individuals are not able to bring private prosecutions for the new offence and will require the consent of the DPP. It was targeted at very serious management failings across the organisation.

 

Elements of the corporate manslaughter offence

The organisation is guilty of an offence if the way its activities are managed or organised:

• Cause a person’s death; and
• Amount to a gross breach of a relevant duty of care owed to the deceased.

The offence is tried on indictment by a jury. There is an express provision that prevents individuals from being prosecuted for aiding, abetting, counselling or procuring the commission of the offence. If this is the case, they must be charged with GNM.

 

(i) The defendant is a qualifying organisation

Typically, Parliament would exclude Government or Crown bodies from the legislation of this nature instead of preferring the approach of a Crown Censure. However, this legislation allows prosecutions of most Government departments, all local authorities and all limited or public companies. Most partnerships will also be within the legislation. The Police can be charged within certain exemptions (typically terrorism cases) with the offence. It’s the force itself that is charged, whereas, in HSWA offences, it is the Chief Constable. Foreign companies can also be charged if they operate in the UK. Most charities can be prosecuted under the offence. However, if the death occurs abroad which is the fault of a British company, then this is excluded from the Act.

 

(ii) The organisation causes a person’s death.

The prosecution will need to prove that the breach was more than a minimal contribution to death (R v HM Coroner for the Inner London, ex parte Douglas-Williams (1999) 1 All ER 344.

 

(iii) There was a relevant duty of care owed by the organisation to the deceased.

A relevant duty of care is one established by legislation or by common law. Relevant duty of care can include; employers and occupiers of buildings or land, duties to those you provide goods and services to, and duties you owe to those you have a commercial relationship with, amongst other things.

The offence applies even where people accept the risk of what they are asked to undertake and then end up dying as a result. In R v Wacker (2002) EWCA Crim 1944 and R v Willoughby (2004) EWCA Crim 3365, an employer of illegal immigrants was still prosecuted when a worker died even though he agreed to climb onto an unsafe roof.

 

(iv) There was a gross breach of that duty of care

Once a breach has been established, it must be judged by the jury as falling far below what could reasonably be expected of the organisation in the circumstances. The case of R v Adomako indicates the appropriate standard to be applied.

In R v British Steel (1995) 1 WLR 1356, the defendant could not escape liability by showing that at a senior level, it had taken steps to ensure safety if, at the operating level, all reasonably practicable steps had not been taken.

It is often said that the risk must be obvious from an objective position to senior management. If the risk being ‘obvious’ is considered differently from whether it was foreseeable. An organisation is considered an inanimate object and, therefore, cannot foresee risk. This is different to HSWA offences where a lack of foreseeability was permitted as a defence to s.3 in R v Hatton Traffic Management (2006) EWCA Crim 1156.

 

(v) A substantial part of that breach was the way it was managed by senior management

The breach must be attributable to senior management failure. The term senior management is defined in s.1(4) to mean those who play a significant role in the management as a whole or a substantial part of the organisation’s activities. It will likely include those who were influential, not just those who carried out the activity.

 

(vi) The defendant must not fall within one of the exemptions in the Act

For a full list of exceptions, please see the legislation directly. Generally, there are a few exceptions that would apply in the leisure industry.

 

Considerations during the investigation

In England and Wales, the consent of the Director of Public Prosecutions is needed before a CM case can be taken to court. The Police will take charge of an investigation of CM, although they will work alongside the HSE and any other regulators. In England and Wales, the CPS will make a charging decision. The Police are not given under the Act any powers of arrest. The HSE can use their powers to enter premises, take possessions etc. The HSE can use their usual powers to prosecute obstruction etc of the investigation under HSWA 1974. If the decision is not to prosecute for corporate or individual manslaughter, then the case should be handed back to the HSE to decide HSWA offences.

Individuals interviewed at the Police station in CM cases will receive the company caution on their organisation’s behalf. If a company puts forward a person as a spokesperson, the CPS is entitled to take that person’s response or refusal to respond as the response of the company.

In England and Wales, the consent of the Director of Public Prosecutions is needed before a CM case can be taken to court. A Prosecution will need to pass the evidential stage, which is sufficient evidence to provide a realistic prospect of conviction based on a Prosecutor's objective view of the evidence.

It will also need to pass the public interest and whether it would be better handled out of court. They will account for seriousness, culpability, circumstances, whether a person is under 18 years of age, impact on the community, if prosecution is a proportionate response, do sources of information require protection.

The Prosecutor will then need to pass the threshold conditions in order to prosecute. The first part is whether there is reasonable suspicion that they have the right person for the offence. In drowning cases, this is usually easily established. The second part is whether further evidence can be gathered to provide a realistic prospect of conviction.

If the decision is not to prosecute for corporate or individual manslaughter, then the case should be handed back to the HSE to decide whether a prosecution for HSWA offences is more appropriate.

Typically, once the CPS decides not to charge the offender, they will stick to that decision. They do have the power to review that decision under strict circumstances, including; new evidence coming forward, an inquest providing information on the death or an error made by the CPS.

If it is likely that more evidence may become available in the future (such as by scientific advancement), the Prosecutor will tell the individual that Prosecution will remain a possibility if further evidence comes forward.

 

Trial

This is an indictable offence and must be tried in the Crown Court. It will first be heard in the Magistrates court, and a plea will be entered, and then an allocation hearing will take place. The case will very quickly be sent to the Crown Court for Trial. The plea and allocation hearing will likely be less than 15-30 minutes. When it reaches the Crown Court, a case management hearing will be conducted, and the issues narrowed down and discussed. Appropriate timescales will be set, and deadlines for lawyers to exchange information ahead of trial. The next time the case comes to court will be for the trial, and the jury will be sworn in.

The legislation specifies that the jury must consider how serious the breach was and/or how much of a risk of death it posed. Either there was a serious and obvious risk of death, or even if the risk of death was small, the way senior management approached H&S was so lax that an accident was likely to occur in some way. The jury may also consider the attitudes, policies, systems or accepted practices that were likely to have encouraged the breach or produced tolerance of it. The jury may also consider any health and safety guidelines issued by the relevant body that relates to the breach. The organisation’s own procedures may be considered as ‘other matters they consider relevant.

 

Sentencing

Sentencing will take place when a jury has convicted the offending organisation of the offence. Step 1 of sentencing is to determine the seriousness of the offence. The court shall assess; how foreseeable injury was, how far short the offender fell, how common this kind of breach is, and whether was there more than one death or a high risk of further deaths. The judge will decide if the offender falls into the higher or lower culpability range using the guidelines.

The judge will obtain a full set of accounts over the last three years of the business to determine financial status. In the absence of proper data, the court will draw the inference that the offender can pay any fine given. For companies, this will typically be annual accounts for partnerships, annual accounts, Local Authorities Annual Revenue Budgets and for charities, annual audited accounts.

Fines should be proportionate to offending and will be adjusted to be proportionate. Fines cannot and do not attempt to value human life in money. The fine must be sufficiently substantial to have a real economic impact that will bring home to management and shareholders to achieve a safe environment for workers and the public in the future.

The court will also consider wider impacts, such as the impact on the offender's ability to improve conditions in the organisation to comply with the law and the impact on employees, customers and suppliers (but not shareholders and directors). Assisting the prosecution may entitle a discounted sentence. Reduction for a guilty plea in accordance with Guilty Plea guideline and s.144 Criminal Justice Act 2003.

In finalising the amount, the court should have regard to; profitability, the economic benefit derived from the offence, and whether the fine will put the offender out of business (which may be acceptable in some cases).

Publicity orders may be made by the court under s.10 CMCHA. This is an additional penalty and does not entitle the offender to a discount on their fine. It will specify the matters to be published, where it is to be published, specify the size of the publication. The Prosecutor will serve a draft to the Court in advance of the sentencing hearing and to the offender for the judge to endorse the final version. Comments placed alongside the offender must be clearly separated and distinguished.

In addition, an offender, by the time of sentencing, should have remedied any specific failings. If they haven’t, a remedial order may be made, and the offender deprived of significant mitigation. The prosecution must serve notice if such an order is sought. The judge will endorse the final order. The order is not relevant to the calculation of the fine. It is an additional penalty for work that should already have been undertaken.

Another option available to the court is a compensation order where the offence has resulted in loss or damage may be considered. Ordinarily, the costs will be covered by insurance. In the vast majority of cases, the court may consider that such issues are best handled by the civil courts and should say that the order is not made for that reason.

In circumstances where the offender cannot pay the total payment, the fine and compensation should take priority over prosecution costs. The court can also authorise the payment to be paid in instalments or, if necessary, over a couple of years.

Section 174, Criminal Justice Act 2003 requires judges to give reasons and explain the effect of the sentence.

The first prosecution was Cotswold Geotechnical Holdings after the death of a geologist in a quarry. Since that case, the authorities have gained valuable skills, experience and confidence in managing corporate manslaughter cases better, often leading to fewer errors in the preparation of cases and, likely from that, more convictions. See the below table of publically available conviction information.

 

Citation: Jacklin, D. 2020. What are the legal duties of a risk assessor? Water Incident Research Hub, 16 June.