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October 16, 2013

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Corporate manslaughter: education still needed

 

There is still a serious lack of awareness of the Corporate Manslaughter and Corporate Homicide Act 2007, according to health and safety lawyer David Thompson. He outlines how the law has worked in practice.

 

Despite the Corporate Manslaughter and Corporate Homicide Act 2007 being in force for five years, studies suggest that many business owners are still unfamiliar with the notion of corporate manslaughter. Unfortunately, while most would not knowingly break the law, this kind of complacency can have devastating consequences.

As well as taking the appropriate advice from health & safety lawyers regarding compliance, it’s important to ensure that adequate insurance cover is in place to meet the legal costs should a company find themselves defending a prosecution under the Act. It is also vital that managers fully understand their roles and responsibilities within the company and that the proper resources are in place. –

The Law
The Act serves to clarify criminal liability and make companies accountable when serious management failures result in a breach in duty of care. The Act created an offence of corporate manslaughter in England, Wales and Northern Ireland and one of corporate homicide in Scotland.

Previously, common law dictated that a company could only be found guilty of an offence such as gross negligence manslaughter if an individual in senior management, known as the ‘controlling mind’, was found guilty too. This was called the Identification Principle. The CMCHA 2007 overcomes the difficulty in cases where failings were a result of the actions of more than one person.


The CMCHA 2007 does not redefine causation or duty of care, aspects of which are applied in accordance to the law on gross negligence manslaughter and civil law negligence. It is down to the prosecution to prove that a gross breach of duty, caused by management failures, contributed significantly to a death and that a duty of care was owed.

Cases
The first firm to be prosecuted under corporate manslaughter legislation, Cotswold Geotechnical Holdings, resulted in a conviction in 2011. The company was fined £385,000. In separate cases, JMW Farms and Lion Steel also saw convictions under the Act. A number of new cases have been instigated and are currently under review by the Crown Prosecution Service (CPS).

Plea Bargain
In some cases, plea bargains could potentially be used to negotiate terms against other charges brought against both individuals and the company. For example, in the case of Lion Steel, an eleventh-hour guilty plea to the charge of corporate manslaughter was submitted by the company as part of an agreement to prevent one of the directors from being given a custodial sentence for an individual conviction of manslaughter.

Liability
In the past it has been difficult to apportion blame specifically on one individual and as such prosecution of senior managers has been rare. Whilst the CMCHA 2007 is not part of health and safety law, it has had a significant impact on corporate health and safety management. As such, health & safety lawyers play an important role in assisting corporations in their compliance with the Act. The focus is on corporate bodies, but other types of individual liability, such as common law gross negligent manslaughter, still remain under separate health and safety legislation. For prosecution under the CMCHA 2007 to take place, a significant part of any failure needs to be seen to have occurred at senior levels. The police and the CPS are required to consider carefully the actions of individuals and therefore top management often find themselves facing liability alongside the company itself. Senior management is considered to be those who play a significant part in decision-making within the company.

Gross Negligence
As the number of corporate manslaughter prosecutions increases, it is expected that so too will those of gross negligence manslaughter and other health and safety offences.
 

David Thompson is a member of the Health and Safety Lawyers Association, Road Haulage Association and Law Society Personal Injury Panel. He specialises in regulatory law, defending companies and individuals facing charges relating to corporate crime and professional misconduct, health & safety, environmental and transport. He is also a member of the Law Society’s Personal Injury panel. 

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