Corporate Manslaughter

Corporate Manslaughter Stephen Fox Senior Partner Ralli

Murder Is committed when a person of sound mind and discretion kills with intent to kill or cause grievous bodily harm • NB - If one person realises there is a risk that another person has a weapon and might cause grievous bodily harm with intent, the first person can be guilty of murder

Manslaughter An offence which would otherwise be murder is reduced to manslaughter if the accused was A. provoked B. suffered from diminished responsibility C. acting in pursuance of a suicide pact Otherwise the elements of manslaughter are the same as murder

Corporate Manslaughter Prior to April 6 2008 • Manslaughter by gross negligence • A senior individual who embodied the company in his actions and decisions (the directing or controlling mind) had to be guilty of the offence • Crown bodies e.g. Government departments, could not be prosecuted because of Crown immunity (exceptions included NHS Trusts and Local Authorities.) • Governed by Common Law

Convictions and Acquittals • Small companies tended to be convicted • R –v- Peter Kite & OLL Ltd (Canoeing trip in Dorset) • R-v- Jackson Transport (employee cleaning road tanker) • R –v- Bowles (driving excessive hours) • Large companies were acquitted and it was impossible to identify a controlling mind. • British Rail (Clapham & Paddington rail crashes) • P & O Ferries (Zeebrugge) • Piper Alfa (Oil rig)

Corporate Manslaughter and Corporate Homicide Act 2007 – Post April 6th 2008 Applies to: • A Corporation • A defined list of Government departments • A police force • A partnership, trade union or employer’s association that is an employer

The Offence • An organisation is guilty of an offence if the way in which its activities are managed or organised: • Causes a person’s death • Amounts to a gross breach of a relevant duty of care owed by the organisation • An organisation is guilty of an offence only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach • A breach of a duty of care is “gross” breach if the conduct amounts to a breach of duty that falls far below what can reasonably be expected of the organisation in the circumstances

Senior Management Senior management means the people who play significant roles in: • The making of decisions about how the whole or a substantial part of its activities are to be managed or organised; or • The actual managing or organising of the whole or a substantial part of those activities. NB The approach is to aggregate individual or group actions.

Relevant duty of care Any of the following duties owed by the organisation under the law of negligence: • A duty to employees or other persons working for or performing services for it • A duty as occupier of premises • A duty owed in connection with : • the supply by the organisation of goods or services (whether paid for or not) • carrying out construction or maintenance operations • carrying on any other activity on a commercial basis • the use or keeping by the organisation of any plant, vehicle or other thing • a duty owed to a person for whose safety the organisation is responsible.

Controlling Minds Widened to cover the way in which the activities of the body were managed or organised as a whole • Previously had to identify and prosecute the controlling mind of the company “controlling mind” • Now refers to “managed or organised by senior management/significant decision makers”

Punishment If a jury finds a gross breach of duty • Unlimited fine (some suggest about 10% of turnover will be the starting point but we will need to wait and see) • Remedial order to take steps to remedy the management failure that lead to the death (this could include much wider health and safety issues and monitoring procedures) • Publicity

Points to Note The offence is committed by a company, not an individual and an individual cannot be found guilty of aiding and abetting NB other health and safety offences can still be committed by individuals

Health & Safety Issues • The law prior to April 6th 2008 was not very different in its intention and in the case of smaller enterprises its effect. There was a plethora of regulation headed by the Health and Safety at work Act 1974 which gave a strict liability to employers to ensure their employees health and safety. The burden of proving its defence falls upon the company which has to show that it did what was reasonably practicable in the circumstances including the company’s financial position.

Other Legislation • The management of health and safety at work regulations imposes the need to assess risk of employees and others who may be affected by a company’s conduct with particular attention to employees under 18. • Consultation and advice and reviews of safety must be put into effect • The Provision and Use of Work Equipment Regulations ensures proper maintenance of machinery and equipment with inspections, training, suitable written information and a log and the Personal Protective Equipment at Work Regulations 1992 requires employers to provide, assess and maintain personal protective equipment. • The workplace (Health, Safety and Welfare, Regulations) 1992 apply to all work places except ships, construction sites and mines and deals with maintenance of equipment, adequate ventilation, room temperatures, lighting and uncluttered work places and traffic routes.

Wider Points Unlimited fines can lead to • Insolvency • Directors disqualification proceedings • Adverse publicity, even if not specifically ordered • Difficulty in obtaining insurance • Redundancy/unfair dismissal claims

Who carries the can?

Questions?

Please visit us at Stand F80 Ralli Courts West Riverside Manchester M3 5FT 0870 998 9000 www.ralli.co.uk corporatemanslaughter@ralli.co.uk

Corporate Manslaughter