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Manslaughter - gross negligence manslaughter - corporate manslaughter

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New corporate manslaughter offence

Corporate Manslaughter and Corporate Homicide Act

The Corporate Manslaughter Act effective April 2008, this followed 10 years of campaigning.

 

Under the new law companies, organisations and, for the first time, Government bodies face an unlimited fine, for corporate manslaughter, if they are found to have caused death due to their gross corporate health and safety failures.

 

All companies, big and small now may be prosecuted

A key obstacle to successful prosecutions has now been removed. It means that both small and large companies can be held liable for manslaughter where gross failures in the management of health and safety cause death.

 

The Act builds on existing health and safety legislation - so the new offence does not impose new regulations on business.  It is about corporate liability, not increasing liability for individual directors or managers who can already be held to account through health and safety laws and the common law of manslaughter.

 

No liability for "accomplice"

It is explicit that, no matter how senior, an individual cannot be convicted of being an “accomplice” to a corporate manslaughter / homicide conviction.

 

Liability of individuals

There is nothing in the legislation that alters the position of an individual who by gross negligence causes the death of another, he can still be prosecuted for gross negligence manslaughter.

 

Hospitals, police etc

Crown bodies - such as Government departments, police forces, local authorities, NHS Trusts and certain other bodies - will be liable to prosecution. 

 

The government has indicated that the number of anticipated prosecutions will be low, in the region of 10 - 13 each year.

 

Unlimited fine

If a corporate body is convicted of this offence it faces the prospect of an unlimited fine. Given the upward trend in health and safety fines in recent years, with £15m the highest fine to date, it is to be expected that convictions for this offence could easily attract 6 and 7 figure penalties.
 

"Publicity Order"

The courts will also have the power to make a publicity order, requiring any company convicted of this offence to publicise their conviction, including details of the offence, the amount of fine imposed and any remedial order made.

 

The reputational damage and stigma resulting from a conviction would be significant. In addition the court can make a remedial order requiring the organisation to take steps to remedy deficiencies in the management of health and safety risk.

 

The legislation states that:

Duty of care

  • an organisation is guilty of the new offence if the way in which its “senior managers” organised or managed its activities caused a person’s death and there was a gross breach of a duty of care which the organisation owed that person

"senior manager"

  • a “senior manager” is a person who manages or organises a whole or substantial part of an organisation’s activities or makes decisions about how those activities are managed or organised

Standards

  • the offence requires a management failure that fell “far below” what could reasonably be expected in the circumstances in assessing this, the jury will consider such aspects as compliance with health and safety legislation and whether the company tolerated or encouraged a culture of non-compliance

In force 6 April 2008

The Act will come into force on 6 April 2008 and the Ministry of Justice will issue further guidance for organisations affected by the Act in the Autumn.  (The offence to deaths in custody will not come into effect on the 6 April, but at a later date).

More information about HSE can be found at: http://www.hse.gov.uk

 

Exam focus

The OCR exam board 12 month rule means that the above information will not be included in any exam question until, at least, June 2009.

In view of the above, the below information will be re-written, for the June 2009 exam.

Companies that kill

Corporate Manslaughter is the name given to gross negligence manslaughter when death follows the negligence of a company.

 

This has proved problematic for the courts and prosecutors who find it difficult to find a single "mind" that has been negligent.

 

The government has promised reforms in this area.

 

It is often said that those responsible hide behind the "Corporate Veil".

 

Between April 1992 and August 2001, there were 135 case referrals by the Health ands Safety Executive to the Crown Prosecution Service for corporate manslaughter. Of these, 18 resulted in prosecutions against directors.

 

27,000 deaths, few prosecutions even fewer convictions

Between 1965 and 2000, 27,000 people were killed in incidents at work or in disasters.

 

There have probably only ever been about a dozen prosecutions for corporate manslaughter and only a handful of convictions.

 

Zeebrugge

The modern history of corporate manslaughter dates back to 1987 when 187 died when the "The Herald of Free Enterprise" ferry capsized coming out of Zeebrugge harbour.

 

Although the case brought by the Crown against P&O Ferries collapsed, corporate killing became an admissible crime in English courts for the first time. (see here for BBC comment and video)

 

King's Cross fire

Also in 1987 was the King's Cross underground fire (31 deaths). (see here for BBC comment)

 

On December 8, 1994, OLL Ltd became the first company in English legal history to be convicted of homicide.

The managing director of OLL, Peter Kite, 45, was the first director to be given an immediate custodial sentence for a manslaughter conviction arising from the operation of a business.

 

Four teenagers drowned in Lyme Bay while on a canoe trip, in 1993, organised by the defendant leisure activity company.

Jackson Transport (Ossett) Ltd and director James Hodgson.

Jackson Transport (Ossett) Ltd was convicted of manslaughter, together with a director, James Hodgson.

 

The case was brought after a 21-year-old employee died after being sprayed in the face with a toxic chemical while cleaning chemical residues from a road tanker.

 

There was inadequate supervision, training, and protective equipment.

 

R v Great West Trains (1999)

16 February 2000 Court of Appeal
Southall train crash seven passengers died.
Mr Justice Scott Baker acquitted Great Western Trains of manslaughter.
 

Confirmed by the Court of Appeal.
 

Prosecution offered no evidence against Larry Harrison, driver, "for parity" (the same as they did for the company)
 

Although Richard George, managing director of Great Western Trains at the time, was head of safety the prosecution could not prove a particular senior executive was grossly negligent.
 

P&O Ferries was prosecuted for corporate manslaughter (after the "Herald of Free Enterprise capsize) and the trial was stopped for exactly the same reasons.
 

Mr Justice Scott Baker:

"There is little purpose in the Law Commission making recommendations if they are to be allowed to lie for years on a shelf gathering dust….It has remained notoriously difficult for the Crown to establish manslaughter against a corporation and as far as I am aware they have only succeeded once and that was in the case of a one-man company."

Great Western pleaded guilty under health and safety legislation and faced unlimited fines
 

In September 1997 Mr Harrison was packing his bag and not looking when the express travelling at 125mph from Swansea to London, went through two warning signals before colliding with a freight train. 151 people injured £10 million worth of damage.
 

Reports indicated that the crash was the fault of Great Western Trains, who forced Mr Harrison to drive an express "whose automatic warning system was not working”.

 

Thames Trains, record fine

April 2004:

Thames Trains were fined a record £2million for the collision at Ladbroke Grove. The fine followed a one-day sentence hearing at the Old Bailey, where the judge also awarded costs of £75,000 in addition to the fine.  The fine was for breach of Health and Safety regulations.

On 5 October 1999 a Thames Trains Turbo passenger train passed signal 109 at red shortly after leaving Paddington station. The Turbo collided head on with a First Great Western high-speed train that was approaching Paddington station. Fire broke out immediately following the collision. 31 people died, including both train drivers, and many more suffered serious injuries.

The maximum sentence in a Crown Court for a single offence is an unlimited fine.

 

News report, here

 

R v Henderson (1995)

A summer-night party was in full swing when the Marchioness was in collision with the gravel dredger Bowbelle on the Thames near Southwark Bridge in the early hours. The Marchioness sank and although 81 passengers survived, 51 died. Francesca Dallaglio, sister of former England rugby captain Lawrence Dallaglio, 19, was killed.
 

A Marine Accident Investigation Branch report found that the cause of the accident was the failure of crew on the Marchioness and the Bowbelle to keep an adequate lookout. However, relatives of the victims insist that some vital details of the last moments before the collision have never been disclosed, and blame lawyers for blocking a full inquiry.
 

An inquest jury found that the disaster had been caused by "gross negligence", but the Crown Prosecution Service decided there was insufficient evidence to prove such a criminal charge.
 

Two trial juries had earlier failed to reach a verdict against Captain Douglas Henderson, skipper of the Bowbelle, who was formally acquitted of endangering life by failing to keep an adequate lookout.

A public enquiry followed in 1992 and the enquiry report stressed that the onus for the safety of travellers rests with the operators, who undertake to provide a service for profit.

 

The study leads to the conclusion that the Department, acting through the Marine Directorate, showed technical competence and dedication, but lacked the vision and drive to lead the river marine industry into accepting that high safety standards and commercial success were compatible.

 

The Committee's recommendations include changes to the future organisation of marine safety, action on rivers, changes to the Marine Accident Investigation branch, improved legislation, and information and new powers over boat owners and operators.

 

R v Bowles (1999)

11 December 1999:
Two directors a brother and sister of a haulage company were found guilty of corporate manslaughter, after ignoring the excessive hours of one of their drivers, who caused a fatal crash after falling asleep at the wheel of his lorry.
 

Given suspended sentences of 15 months and 12 months respectively.
 

Stephen and Julie Bowles were convicted when the jury decided that they knew, or that they should have known, that their driver, Andrew Cox, was in a "dangerously exhausted state". Cox who often worked more than 60 hours without taking proper breaks killed two motorists on the M25 in October 1997.

 

The first corporate manslaughter case of its kind, fails

 

July 2006

Barrow Borough Council was cleared of corporate manslaughter midway through the trial, but pleaded guilty to breaching the Health and Safety at Work Act.

 

Barrow Borough Council in Cumbria was prosecuted for the manslaughter of seven people who died from legionnaire's disease,

The Crown Prosecution Service pressed charges not only against the council but also one of its employees Gillian Beckingham, a design services manager with Barrow Council, charged with breaching health and safety regulations.

 

Seven people died following an outbreak of legionnaire's disease in 2002, and a further 140 people were infected as a result of an air-conditioning unit at the council-run Forum 28 arts centre. It was later discovered that a maintenance contract to clean the unit at the Forum 28 arts complex was axed by the council.

 

Hatfield Rail Crash

17 October 2000

Four people died in a rail crash at Hatfield station and 102 other passengers and staff suffered injuries. Railtrack Plc (now Network Rail), was responsible for the track at the time of the crash. Balfour Beatty Plc, Europe's largest track engineer, was contracted for repairs to the stretch of line involved.

 

9 July 2003

The Crown Prosecution Service announced that Railtrack Plc and Balfour Beatty Plc, directors and managers would be charged with gross negligence manslaughter and offences involving a failure to discharge a duty under the Health and Safety at Work Act (HSWA).

 

1 September 2004

Most manslaughter charges were dropped by the high court due to insufficient evidence. The court also dropped health and safety charges. 

 

This decision by the high court has caused fresh calls for a new offence of reckless killing, or killing by gross carelessness. However, the CPS has confirmed that nine other engineers and executives from Railtrack, and Balfour Beatty, would continue to face charges under the HSWA, in connection with the crash. Balfour Beatty also still faces a charge of corporate manslaughter.

 

This will be a landmark case when, or if, it comes to trial, involving as it does large companies and both current and former engineers and managers.

 

October 2005

Largest ever fine in an English court imposed on Balfour Beatty, £10 million, later reduced to £7.5m on appeal.

 

A New Offence of Corporate Killing

In its report Legislating the Criminal Code: Involuntary Manslaughter , the Law Commission recommended a new offence of "corporate killing".

In 1846, Lord Denman CJ:

"There can be no effectual means for deterring from an oppressive exercise of power for the purpose of gain, except the remedy by indictment against those who truly commit it, that is the corporation, acting by its majority; and there is no principle that places them beyond the reach of the law for such proceedings."

July 2006 Bill presented to Parliament

New legislation to prosecute companies whose gross negligence leads to the death of employees or members of the public has been published in the Corporate Manslaughter and Corporate Homicide Bill. The bill also takes the unprecedented step of lifting Crown immunity for the first time.

A proposed new criminal offence will enable the courts to consider the overall picture of how an organisation's activities were managed by its senior managers, rather than focusing on the actions of one individual.
 

An organisation will be guilty of the new offence if someone has been killed as a result of the gross failure of an organisation's senior managers for example to:

  • ensure safe working practices for their employees and

  • maintain the safety of their premises.

However, currently it will not be possible to prosecute a company where the failings are at junior management levels, but the Government will look to refine this definition during the bill's parliamentary passage, if a better way of achieving this can be found.

 

The Bill has now passed through Parliament and will be in force in April 2008.

 

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