A Brief Guide to Corporate Manslaughter

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A Brief Guide to Corporate Manslaughter
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History of the Bill

• Courts have always had problem with controlling
  (or directing mind) in larger organisations
• Controlling Mind more obvious in smaller
  organisations
• July 2006 Corporate Manslaughter Bill published
  and introduced for 1st reading
• Passed July 07 introduced into law on 6th April
  2008

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Position of the Individuals

• Can YOU as an individual be personally liable
  under Corporate Manslaughter?

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The Position of Individuals Within Corporate
Manslaughter Act

• The offence is concerned with the corporate
  liability of the organisation itself not the
  individual
• Does not apply to individual directors,
  individual senior managers or other persons
• Neither is it possible to convict an individual
  of assisting or encouraging the offence, however
  as before individuals can be prosecuted for gross
  negligence manslaughter/culpable homicide and for
  health safety offences

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The Offence

• An organisation will be guilty of an offence if
  the way
• in which any of its activities are managed or
  organised
• causes a death and amounts to a gross breach
  of a duty
• of care to the deceased
• Courts to look at management systems and
  practices across the organisation, and whether an
  adequate standard of care was applied to the
  fatal activity.
• For Corporate Manslaughter to be considered, a
  substantial part of the failure within the
  organisation must have been at the senior
  management level

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The Offence

• Senior management level is considered to mean the
  people who make significant decisions about the
  organisation or substantial parts of it. This
  could therefore include people such as
• Head teachers
• Head of Finance
• Unit Managers
• This may also include operational Management
  Roles and Strategic Roles (such as councillors or
  similar)

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The Offence

• Other factors that might be considered will range
  from questions about
• the systems of work used by employees
• their level of training and
• adequacy of equipment and also to
• issues of immediate supervision and middle
  management
• May well extend to questions about the
• organisations strategic approach to health and
  safety and
• Its arrangements for assessing, monitoring and
  auditing its processes

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The Offence

• Can the offence be avoided by senior management
  delegating responsibility for health and safety?
• NO! (Well this is the
  Government's view)
• This Act is concerned with way an activity
  managed or organised - will consider how
  responsibility was being discharged at different
  levels of the organisation

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The Offence

• Failures by senior managers to manage health
  safety adequately (including inappropriate
  delegation of health and safety matters) will
  leave organisations vulnerable to charges.
• Does not mean responsibility for managing health
  safety cannot be a matter across the management
  chain
• senior management need to ensure adequate
  processes for health safety and risk management
  are in place and they are implementing them

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The relevant duty of care it means to an
organisation

• any of the following duties owed by it under the
  law of negligence
• a duty owed to its employees or to other persons
  working for the organisation or performing
  services for it
• a duty owed as occupier of premises

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The relevant duty of care it means to an
organisation

• a duty owed in connection with-
• the supply by the organisation of goods or
  services (whether for consideration or not)
• the carrying on by the organisation of any
  construction or maintenance operations
• the carrying on by the organisation of any other
  activity on a commercial basis or
• the use or keeping by the organisation of any
  plant, vehicle or other thing

• a duty owed to a person who, by reason of being a
  person within subsection (2), is someone for
  whose safety the organisation is responsible.

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Duty of Care

• Is an obligation that an organisation has to take
  reasonable steps to protect a persons safety
• These duties exist, for example in respect of
• the systems of work and equipment used by
  employees
• the condition of worksites and other premises
  occupied by an organisation and in relation to
  products or services supplied to customers.
• The act does not create new duties they are
  already owed in the civil law of negligence and
  the new offence is based on these.

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Duty of Care

• Only a duty of care in the law of negligence will
  be a relevant duty of care
• In practice, there is a significant overlap
  between these types of duty. For example
• employers have a responsibility for the safety of
  their employees under the law of negligence and
  under health and safety law (e.g. Section 2 of
  the Health and Safety at Work Act 1974)
• Similarly both statutory duties and common law
  duties will be owed to members of the public
  affected by the conduct of an organisations
  activities
• Even where a statutory duty has been imposed it
  will still be the test under negligence that
  would normally be applied

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Duty of Care - Gross Breach

• Breach must have been gross and have resulted
  from a failure that falls far below what could
  reasonably have been expected
• Juries will take account of any health and safety
  breaches and how serious and dangerous those
  failures were.
• The failure to manage or organise activities
  properly must have caused the victims death
• The test will still however be one of
  reasonableness
• No liability should arise where the management
  includes reasonable safeguards even where a death
  nonetheless occurs

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Penalties

• An organisation convicted of the new offence can
  receive
• A fine - there is no upper limit to what this can
  be.
• A publicity order
• Court may require an organisation to publicise
  its conviction and certain details of the offence
  (but will commence when supporting guidelines are
  available, expected Autumn 2008)
• In addition, the court can set a remedial order
• This will require the organisation to address the
  cause of the fatal injury

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Corporate Manslaughter

• In summary, the offence is committed where,
  in particular circumstances, an organisation owes
  a duty to take reasonable care for the person's
  safety and the way in which activities of the
  organisation have been managed or organised by
  senior managers amounts to a gross breach of this
  duty and causes the person's death.

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Corporate Manslaughter The Barrow Case

• August 2002 - outbreak of Legionnaires
  disease - 140 affected - 7 deaths
• Council Arts Centre air con system discharging
  into street
• Following Police HSE enquiries case brought in
  Crown Court against both Council Design
  Services Manager (Gill Beckingham) for
  Manslaughter and under HASWA
• Evidence given was that
• Maintenance contract for air conditioning system
  had been cancelled some months previous to
  outbreak
• Officers had been seeking funding to renovate the
  system
• Spray from contaminated water falling like rain
  

                                      A civic
centre in Barrow is thought to be the source
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Corporate Manslaughter The Barrow Case

• Chief Executive called to give evidence -
  admitted that
• April 2001 - Safety Officer Post cut to part time
  only
• Not aware of any of specific Legionnaires Risk
  Assessment being required for centre
• No safety committee in place (thought only had to
  set one up if requested by Trade Union) -
  admitted this was his own personal fault

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Corporate Manslaughter The Barrow Case

• 4 weeks into case - Judge ordered jury to find
  Council not guilty of manslaughter charge -
  why?
• Judge decided that the Design Services Manager
  was not a Directing Mind
• He thought that as a 3rd tier officer she could
  never be considered the directing mind so
  therefore Council could not be found guilty
• Went further to even question whether Chief
  Executive could be the controlling mind of the
  Authority (does that put Councillors in the
  frame?)
• Case continued against Gill Beckingham but after
  further

5 days Jury could not agree on manslaughter
charge but found her guilty on the HASWA offence
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Corporate Manslaughter The Barrow Case

• CPS decide they wanted a re-trial - lasted
  further 7 weeks
• Again she was found not guilty of manslaughter
  but again found guilty under Section 7 of HASWA
• Fined (in accordance with her ability to pay)
  15,000 (half her annual salary)
• Council having already pleaded guilty to breach
  of HASWA were fined 125,000 costs of 90,000
• Judge commented that
• Fine would have been much greater (1million )
  if a large private company
• Councils HS failings were grave in the
  extreme

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Corporate Manslaughter Could it happen here?

• Yes, the potential exits
• Workplace Transport fleet and private vehicles
• Managing construction projects
• Legionella
• Asbestos
• Off-site visits (Glenridding / Stainforth Beck)
• Fire
• Bullying?