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New corporate manslaughter
offence |
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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.
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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.
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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.
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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.
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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.
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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.
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"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.
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The legislation states that: |
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Duty of care |
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"senior manager" |
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Standards |
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In force 6 April 2008
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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
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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. |
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In view of the
above, the below information will be re-written, for the June 2009 exam. |
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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. |
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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. |
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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) |
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King's Cross fire |
Also in 1987 was the King's Cross underground fire
(31 deaths). (see here
for BBC comment)
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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. |
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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. |
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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”. |
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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 |
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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. |
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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. |
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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. |
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Hatfield
Rail Crash |
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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.
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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).
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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.
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October 2005 |
Largest ever fine in an English court
imposed on Balfour Beatty, £10 million, later reduced to £7.5m on appeal.
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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."
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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:
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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