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Corporate Manslaughter

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What Is Corporate Manslaughter?

Prior to 6 April 2008, it was possible for a corporate entity, such as a company, to be prosecuted for a wide range of criminal offences, including the common law offence of gross negligence manslaughter. However, in order for the company to be guilty of the offence, it was also necessary for a senior individual who could be said to embody the company (also known as a 'controlling mind') to be guilty of the offence. This was known as the identification principle.

On the 6 April 2008, the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) came into force throughout the UK. In England and Wales and Northern Ireland, the new offence is called corporate manslaughter, and in Scotland it is called corporate homicide.

The provisions in the Act which relate to deaths which occur in custody will be brought into force on 1 September 2011.  There is further information on these provisions later in this guidance. 

Where any of the conduct or events alleged to constitute the offence occurred before 6 April 2008, the pre-existing common law will apply. Therefore, the Act will only apply to deaths where the conduct or harm, leading to the death, occurs on or after 6 April.  Therefore if the breach of duty is alleged to have occurred before 6 April 2008, for example where a building has been defectively wired or a person has been exposed to asbestos many years ago, the common law applies.

Individuals will not be able to bring a private prosecution for the new offence without the consent of the DPP (section 17).  This is unlike the position with allegations of gross negligence manslaughter against individuals where no such consent is required.  See below for further information regarding consent.

The offence was created to provide a means of accountability for very serious management failings across the organisation. The original intention was to overcome the problems at common law of 'identification' and 'aggregation' (the prosecution could not aggregate the failings of a number of individuals) in relation to incorporated bodies. The offence is now considerably wider in scope than simply overcoming these two problems and it now includes liability for organisations which could never previously be prosecuted for manslaughter (See The Organisation below).

The new offence is intended to work in conjunction with other forms of accountability such as gross negligent manslaughter for individuals and other health and safety legislation.

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The Offence Under The CMCHA 2007

Section 1: The offence

An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised -

  • causes a person's death; and
  • amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

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 referred to in subsection (1).

This offence is indictable only and on conviction the judge may impose an unlimited fine (section 1(6)).

Section 18 states that an individual cannot be indicted for aiding, abetting, counselling or procuring the commission of this offence.  However an individual may still be prosecuted for common law gross negligence manslaughter.

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Elements Of The Offence

The following needs to be proved:

  • the defendant is a qualifying organisation;
  • the organisation causes a person's death;
  • there was a relevant duty of care owed by the organisation to the deceased;
  • there was a gross breach of that duty;
  • a substantial element of that breach was in the way those activities were managed or organised by senior management; and
  • the defendant must not fall within one of the exemptions for prosecution under the Act.

Therefore the reviewing lawyer will have to consider how the fatal activity was managed, or organised, throughout the organisation, including any systems and processes for managing safety and how these were operated in practice. A substantial part of the failure within the organisation must have been at a senior management level (see below).

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The Organisation

Section 1(2) states the offence applies to the following bodies:

  • a corporation;
  • a department or other body listed in Schedule 1;
  • a police force; and
  • a partnership, or trade union or employer's association that is an employer.

Corporations

This means a body which is incorporated, usually a company limited by shares or guarantee. It usually has a suffix such as ltd or plc (see sections 3- 6 Companies Act 2006). It includes other organisations such as a local authority (section 2(3) Local Government Act 1972) and NHS Trusts (section 5(5) National Health Service and Community Care Act 1990) which have been incorporated.

Departments

Crown immunity was a long established legal doctrine that meant that Crown bodies (such as Government departments) could not be prosecuted. Section 11(1) now allows prosecutions under the Act to apply to such bodies.

Schedule 1 sets out a list of Government departments to which the offence applies. In addition, the offence will apply to Crown bodies that are incorporated, such as the Charity Commission, Office of Fair Trading and Postal Services Commission.

The Act will also apply to a wide range of statutory public bodies which are not part of the Crown, including local authorities, NHS bodies and many non-departmental public bodies with executive responsibilities.

Changes of Government Departments are dealt with by section 16. The general rule is that any prosecution will be taken against the body that currently has responsibility for the functions connected with the death.

If a function is transferred out of the public sector entirely, proceedings will be against the public body by which the function was last carried out.

Police forces, Constabularies and Services

Subject to certain exemptions (see Exclusions below) the police can be prosecuted for the new offence. It is important to note, that if a police force is prosecuted for corporate manslaughter it is the force itself which is indicted, however if there is a prosecution under the Health and Safety at Work Act 1974 (HSWA), it is the Chief Constable as a corporation sole who is the defendant (section 51A HSWA as amended by section 158 of the Serious Organised Crime and Police Act 2005).

Partnership, trade union or employers association, if employers

A partnership can now be prosecuted in the name of the partnership only but any fine is payable out of the funds held in the partnership name and not the individual partners - section14. This does not prevent an individual partner also being prosecuted at common law. A limited liability partnership however is a body corporate see section 1(2) Limited Liability Partnership Act 2000). Note however that a partnership may only be prosecuted for corporate manslaughter if it is an employer. If it does employ anyone then its relevant duties of care are not limited to its employees.  Ensure that the police obtain a copy of the partnership agreement so that you are satisfied as to the identities of the partners.

Foreign companies and Subsidiaries

The offence applies to companies and other corporate bodies operating in the UK, whether they are incorporated in the UK or abroad.

Companies that operate using a group structure are all separate legal entities for the purpose of the Act if the subsidiaries are also incorporated.  They are therefore individually subject to the offence. Careful consideration must therefore be given to whether the organisation under consideration is a distinct legal entity from the parent organisation or simply a sub-division.

Where a company is registered abroad and is operating through an incorporated UK based subsidiary, if the subsidiary commits the offence it is the subsidiary which is the relevant organisation for the purpose of prosecution.

Sub-contractors

The offence applies to all companies and employing partnerships, including those in a contracting chain. However, whether a particular contractor might be liable for the new offence will depend on whether they owed a relevant duty of care to the victim. The Act does not impose new duties of care but the offence will apply in respect of existing obligations on the main contractor and sub-contractors for the safety of worksites, employees and other workers whom they supervise.

Charities

As with the previous law of manslaughter, the new offence will apply where a charity or voluntary organisation has been incorporated for example, as a company or as a charitable incorporated organisation under the Charities Act 2006.

In addition any charity or voluntary organisation that operates as any other form of organisation to which the offence applies, such as a partnership with employees, will also be liable to the new offence.

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Causation

The Act does not define causation but the intention was to follow aspects of the law on gross negligence manslaughter.  Therefore the prosecution will need to prove that the breach was a more than minimal contribution to the death (see R v HM Coroner for Inner London, ex parte Douglas-Williams (1999) 1 All ER 344).  It must be emphasised that the special rules on causation created for the purposes of the civil law (see Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; and developed in Barker v Corus UK Ltd [2006] UKHL 20) do not apply to the criminal law.

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Relevant Duty Of Care

Section 2(1) requires that the relevant duty of care is to be one that is owed under the law of negligence. The Act does not create new duties to those already owed in the civil law of negligence. This will commonly be a duty owed at common law, although in certain circumstances these duties have been set out in statutory provision.

The application of the offence is not affected by common law rules precluding liability in the law of negligence where people are jointly engaged in a criminal enterprise or where they accept a risk. (See e.g. R v Wacker (2002) EWCA Crim 1944 and R v Willoughby (2004) EWCA Crim 3365). In this context we could still prosecute an employer of illegal immigrants or where a worker died even though he agreed to climb onto an unsafe roof.

The duty must be a relevant one for the offence. Relevant duties are set out in section 2(1) of the Act and include:

  • employer and occupier duties;
  • duties owed in connection with;
  • supplying goods and services (whether or not for consideration);
  • construction and maintenance work. For a definition of what is included in this subsection see 2(7). (Note that simply because there is a statutory duty to perform an act, this does not create a relevant duty of care. Thus although a Highways Authority has a duty to maintain roads - section 41 Highways Act 1980 - the failure to do so does not give rise to a duty of care to a motorist in negligence. However a negligent repair would do so);
  • other activities on a commercial basis; and
  • using or keeping plant, vehicles or other things.

Death in custody

Where a person is detained in an institution described in section 2(2) (as amended by Commencement (No 3) Order 2011 to include UKBA customs facilities or the Ministry of Defence service custody premises) then the organisation owes the detainee a relevant duty of care section 2(1)(d).

The provisions of section 2(1)(d) are brought in on 1 September 2011 by virtue of the Corporate Manslaughter and Corporate Homicide Act (Commencement No 3 Order) 2011.  Where any of the conduct or events alleged to constitute the offence in relation to this section occurred before 1 September 2011, then the common law (which was preserved by the Corporate Manslaughter Act 2007 (Commencement no 1 Order) 2008) applies.  

It will be for the trial judge to determine whether the organisation owed the deceased a duty of care (section 2(5)) but for the jury to determine if there was a breach, then the seriousness of it and 'how much of a risk of death it posed' section 8(2). This reflects the heavily legal nature of the tests relating to the existence of a duty of care in the law of negligence.

In practice, there is a significant overlap between statutory duties imposed under health and safety legislation and 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 (see below for example section 2 of the Health and Safety at Work etc Act 1974). Similarly, both statutory duties and common law duties will be owed to members of the public affected by the conduct of an organisation's activities.

Sections 3 to 7 of the CMCHA (see Exclusions below) provide that the offence does not apply to the performance of specified public functions.

Duties owed by company directors

Directors duties are primarily of a fiduciary nature and owed to the company. It is the company which owes the duty of care and it is not a necessary inference that the director, because of his role as director, therefore owes a similar duty to others who may be affected by the actions/omissions of the company.  Note the observations of the Court of Appeal Evans & sons v Spritebrand [1985] 1 WLR 317: The authorities.clearly show that a director of a company is not automatically to be identified with his company for the purposes of the law of tort, however small the company may be and however powerful his control over its affairs In every case where it is sought to make him liable for his companys torts, it is necessary to examine with care what part he personally played in regards to the act or acts complained of Cited with approval in Williams & another v Natural Life Health Foods Ltd & Mistlin (1996) EWCA  Civ 1110.

If this is the position in relation to civil law, it is even more the case when applying criminal provisions.

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The Gross Breach

Once a relevant duty of care has been established any breach must fall far below what could reasonably be expected of the organisation in the circumstances section1(4)(b).

Section 8, sets out factors for the jury which must consider in determining whether health and safety legislation was breached then if so:

  • how serious the breach was (section 8(2)(a);
  • how much of a risk of death it posed (section 8(2)(b).

Note that the breach which causes the death must be directly attributable to the senior management failure. At present there is no guidance on how sections 8(2)(a) and 8(2)(b) are to be read. This does leave open the interpretation that section 8(2) and section 8(3) may be viewed as alternative approaches (or joint if both are present) to determine 'grossness'. Either that there was a serious and obvious risk of death from the specific act being undertaken or, even if the risk of death from that act, was small nevertheless the way the organisation through its senior management approached health and safety was so lax, that an accident was always likely to occur in some way.

The foreseeability of risk is not in the definition of the offence because a corporation does not have the capacity to foresee risk, it being inanimate - see Law Commission website at: http://www.justice.gov.uk/lawcommission/publications/legislating-the-criminal-code-involuntary-manslaughter.htm  (LC 237) pages 99-100. But the Law Commission did suggest that this would not prevent the jury considering whether it was or should have been obvious to senior managers.

This approach has been used in section 3 HSWA (R v Hatton Traffic Management (2006) EWCA Crim 1156) where foreseeability (or the lack of it) was permitted for the defence. The different tests are likely to prove problematic where both an individual and an organisation are prosecuted for manslaughter and also if either are charged with HSWA offences where different directions will need to be given. It will be especially so for coroners.

Other non-causative breaches might be admissible under section 8(3) which says:

  •  The jury may also consider the attitudes, policies, systems or accepted practices that were likely to have encouraged the breach or produced a tolerance of it; and
  • may have regard to any health and safety guidance issued by the relevant enforcement authority that relates to the breach.

Internal guidance from within the organisation does not fall within this provision as the organisation is not an 'enforcement authority' but it may be adduced under section 8(4) because the jury may consider 'any other matters they consider relevant' which might then capture the internal guidance.

It is important to note the differences between the test under the Act for grossness and the common law test for individuals as identified in R v Adomako (1994) 3 All ER 79 and R v Misra & Srivastava [2005] 1 Cr App R 328 where a 'serious and obvious' risk of death is required.

Therefore, the organisation's conduct must have fallen far below what could have been reasonably expected. Juries will have to take into account any health and safety breaches by the organisation and how serious and dangerous those failures were. This is intended to be broadly equivalent to the sort of threshold applied under the common law.

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Senior Management

The term 'senior management' is defined in section 1(4) to mean those persons who play a significant role in the management of the whole, or a substantial part of the, organisation's activities.

Neither 'significant' nor 'substantial' are defined but the former is likely to be limited to those whose involvement is influential and will not include those who simply carry out the activity. When considering a prosecution under the Act, it is essential to obtain an organogram of the organisation in order to identify senior management and to use that information to determine whether a substantial element of the breach was at a senior management level.

The test of senior management is wider than the former 'controlling mind' which effectively restricted the offence to actions of directors. A regional manager would probably count but this may itself depend on the number of regions, the number of higher tiers of management, the diversity of the organisation's activities and his own job description.

Prosecutors should note that it is the representative of the company who is being interviewed and that he/she should be cautioned in that capacity. The argument being that the suspect (company) is being cautioned and not the individual facing you.  An individual would only be cautioned where the police suspect he/she may have committed an offence. Where, in addition, an individual (board member) is being put forward to speak as the company then they should be cautioned as the company.

If the company puts forward a person to speak as the company we are entitled to take that persons answers (or refusal to answer) as the response of the company. The notion is that the company is a human defendant and a failure to caution might make any admissions inadmissible and any refusal by the company to reply in such circumstances would prevent a Criminal Justice and Public Order Act application.

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Consent To Prosecute

In England and Wales the consent of the Director of Public Prosecutions is needed before a case of corporate manslaughter can be taken to court.  Every Crown Prosecutor may give consent and it is recommended that the file is endorsed with reference to the consent under section 17.

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Jurisdiction

The Act sets out specific rules for the jurisdiction of the new offence; i.e. to determine whether a death in a particular place will fall under the new offence.

A British company cannot be prosecuted for deaths abroad unless the harm occurs in this country.

Note also that where any conduct or events which are alleged to constitute any element of the offence occurred before 6 April 2008, then the Act does not apply and you should revert to the common law section 27.

Prosecution

Section 33 Criminal Justice Act 1925 and Schedule 3 Magistrates' Courts Act 1980 applies to any organisation charged under this Act section 15. This means that any plea must be in writing. As the offence is indictable only, (section 1(6)), the provisions of paragraph 1 Schedule 3 (form of certificate of committal) do not apply.

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Exclusions

Corporate manslaughter will not apply to certain public and government functions where there exist wider questions of public policy, especially where there are already other forms of accountability.

The exemptions fall into two broad types: comprehensive exemptions and partial exemptions.

Comprehensive exemptions

Where a comprehensive exemption exists, the new offence does not apply in respect of any duty of care that an organisation might otherwise owe. These apply to:

  • Public policy decisions (section 3(1)). This covers, for example, strategic funding decisions and other matters involving competing public interests. But it does not exempt decisions about how resources were managed;
  • Military activities, including potentially violent peacekeeping operations and those dealing with terrorism and violent disorder. Related support and preparatory activities and hazardous training are also exempt - section 4;
  • Police operations, dealing with terrorism and violent disorder. This also extends to support and preparatory activities and hazardous training (sections 5(1) and 5(2)).

Public policy decisions

Section 3 makes provision specifically to exclude certain matters from the ambit of the offence. Section 3(1) deals with decisions of public policy taken by public authorities. Public authorities are defined by reference to the Human Rights Act 1998 and include core public bodies such as Government departments and local government bodies, as well as any other body some of whose functions are of a public nature. Courts and tribunals, which are not covered by the new offence, are excluded but not the Courts Service.

At present, the law of negligence recognises that some decisions taken by public bodies are not susceptible to review in the courts. This is because they involve decisions concerning competing public priorities or other questions of public policy. These may, include decisions by Primary Care Trusts about the funding of particular treatments.

Section 3(2) grants an exemption in respect of intrinsically public functions. The section provides that an organisation will not be liable for a breach of any duty of care owed in respect of things done in the exercise of "exclusively public functions", unless the organisation owes the duty in its capacity as an employer or as an occupier of premises. In many circumstances, functions of this nature will not be covered by the categories of duty set out in section 2. However, it is possible that some such functions will amount to the supply of goods or services or be performed commercially, particularly if performed by the private sector on behalf of the State.

In other circumstances, things done in the exercise of such a function will involve the use of equipment or vehicles. This test is not confined to Crown or other public bodies but also excludes any organisation (public or otherwise) performing that particular type of function. This does not affect questions of individual liability, and prosecutions for gross negligence manslaughter and other offences will remain possible against individuals performing these functions who are themselves culpable. The management of these functions will continue to be subject to other forms of accountability such as independent investigations, public inquiries and the accountability of Ministers through Parliament.

"Exclusively public functions" are defined in section 3(4). The test covers both functions falling within the prerogative of the Crown - for instance, where the Government provides services in a civil emergency - and types of activity that by their nature require a statutory or prerogative basis, in other words, that cannot be independently performed by private bodies. This looks at the nature of the activity involved.

It therefore would not cover an activity simply because it was one that required a licence or took place on a statutory basis. Rather, the nature of the activity involved must be one that requires a statutory or prerogative basis, for example licensing drugs or conducting international diplomacy.

Private companies that carry out public functions are broadly in the same position as public bodies. A number of exemptions are written in a general way, to exclude a particular activity regardless of what sort of organisation is carrying it out. In some instances, the Act makes specific provision for organisations in both the public and private sectors. Overall, the Act is intended to ensure a broadly level playing field under the new offence for public and private sector bodies when they are in a comparable situation.

Military activities

Section 4 makes provision to exclude certain activities performed by the armed forces. A wide range of operational military activities will be exclusively public functions within the terms of section 3(2) and so exempt from the offence. However, that exemption does not relate to an organisation's duties as employer or occupier. The exemption applies to the conduct, preparation and support of military operations as well as other hazardous and unpredictable circumstances, including peacekeeping operations and operations dealing with terrorism or serious public disorder. The law of negligence already recognises that the military authorities will rarely owe a duty of care in such circumstances. The fact that the Act will not apply in such circumstances is made explicit on the face of the Act. In addition, the exemption extends to training exercises that simulate these sorts of operations and to the activities of the Special Forces.

Policing and law enforcement

Section 5 deals with policing and law enforcement activities performed by the police and other law enforcement bodies. Subsection (1) provides an exemption that applies to the police and other law enforcement bodies (such as immigration bodies) in respect of all categories of duty of care referred to in section 2, i.e., including those duties of care owed by an organisation as an employer or the occupier of premises. But this wide exemption is available only in limited circumstances: specifically, operations dealing with terrorism, civil unrest or serious disorder in which an authority's officers or employees come under attack or the threat of attack; or where the authority in question is preparing for or supporting such operations; or where it is carrying on training with respect to such operations.

This reflects the existing law of negligence, which already accepts that the policing of violence when the police come under attack, or the threat of attack, will not give rise to liability on the part of an employer. There is a requirement in section 5(2) that the operations being carried on, or prepared for, or supported, amount to "policing or law enforcement activities".

Subsection (3) confers an exemption that applies to a wider range of policing and law enforcement activities, but not in respect of the duty of care owed as employer (or occupier). The exemption therefore operates to exclude circumstances where the pursuit of law enforcement activities has resulted in a fatality to a member of the public. Many of the activities to which this will be relevant will be ones that are not in any event covered by the offence either because no duty of care is owed or because they do not amount to the supply of services or the activities are exclusively public functions.

Subsection (3) makes it clear that policing and law enforcement activities are not, in this respect, covered by the offence. This will include decisions about and responses to emergency calls, the manner in which particular police operations are conducted, the way in which law enforcement and other powers are exercised, measures taken to protect witnesses and the arrest and detention of suspects.

Partial exemptions

In these circumstances, the new offence does not apply unless the death relates to the organisation's responsibility as employer (or to others working for the organisation) or as an occupier of premises. These include:

  • The emergency responses, including fire and rescue authorities, relevant NHS bodies, ambulance services (this does not exempt duties of care relating to medical treatment in an emergency, other than triage decisions (determining the order in which injured people are treated)); organ carriers and the armed forces; carrying out statutory inspection work (section 3(3)), child-protection functions or probation activities (section 7);
  • Care and supervision orders made under Part 4 Children Act 1989 removal and protection of children, or under Part 5 - local authority's duty to investigate whether to take action to protect a child's welfare;
  • The exercise by a local probation board or other authority made under the CJ & CS Act 2000 (Chapter 1 of Part 1 section (2)(a) gives one of the aims of the service as 'the protection of the public.');
  • Functions carried out by the Government using prerogative powers, such as acting in a civil emergency; and
  • Functions that, by their nature, require statutory (or prerogative) authority. This does not exempt an activity simply because statute provides an organisation with the power to carry it out (as is the case, for example, with legislation relating to NHS bodies and local authorities). Nor does it exempt an activity because it requires a licence (such as selling alcohol). Rather, the activity must be of a sort that cannot be independently performed by a private body. The type of activity involved must intrinsically require statutory or prerogative authority, such as licensing drugs or conducting international diplomacy.

In relation to medical emergencies, section 6(3) states that the exemption does not apply to the administration of medical treatment but it does apply to a decision over which patient should be tended to first. For example an ambulance crew is deployed to the scene of a motorway crash involving multiple victims. They arrive at the scene and administer first aid to a victim with minor injuries, leaving a victim, with more serious injuries, to suffer without tending to them. There is no 'relevant' duty of care arising from the decision as to the order in which the patients are to be treated.

The ambulance service does not owe a relevant duty of care until the ambulance crew tend to a patient and administer medical treatment. Therefore it does not matter, for the purposes of the Act, how slowly they drove to the scene. It is also irrelevant for these purposes that the crew chose to ignore the more seriously injured. It is only when they tend to the patient that the organisation takes on a duty of care for that particular patient.

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Investigation Procedures

The police will lead an investigation if a criminal offence (other than under health and safety law) is suspected. They will work in partnership with the Health and Safety Executive (HSE), local authority or other regulatory authority. It is important that the knowledge and expertise of the regulatory enforcing authorities - such as the HSE, the Office of Rail Regulation (ORR), Food Standards Agency  (FSA) and local authorities - are properly harnessed in any corporate manslaughter investigation, and protocols currently exist to facilitate this. Please refer to Prosecutors Agencies - Relations with Other Agencies elsewhere in the Legal Guidance for more detail.

The Rail, Air and Marine Accident Investigation Branches will continue to be responsible for separate investigations to determine the cause of an incident and to issue reports.

Proceedings for the offence will be the responsibility of the Crown Prosecution Service in England and Wales. In 2004 the National Liaison Committee on the Work-Related Deaths Protocol published an "Investigators' Guide" as an aid to improve consistency in its application. The Investigators Guide sets out a step by step approach to investigating deaths within the workplace and includes guidance on domestic gas incidents and road deaths. Both the Protocol and Guide were recently published in 2011 and can be obtained from the HSE website www.hse.gov.uk.

When police investigate they should consider the possibility of a prosecution for corporate manslaughter under the CMCHA as well as looking at the actions of individuals for possible prosecution for gross negligence manslaughter.

Investigations will have a far greater focus than before on persons fulfilling the senior management definition and whether their acts or omissions contributed to the fatality.

Police/HSE (Local Authority) powers

The Act does not provide police with any power of arrest of individuals. The HSE (Local Authority) have powers of entry and can take into possession any document, item or equipment including computers. However, all communication with the authorities must be documented as part of the internal investigation record process.

The HSE is a statutory body established under the Health and Safety at Work Act 1974 (HSWA). It is responsible for making adequate arrangements for the enforcement of health and safety legislation, and has a role in investigations which follow a work-related death. The HSE also has the power to prosecute offences breaching HSWA.

Legal Action Options

If the decision is not to prosecute for corporate (or individual) manslaughter then the file is handed to the HSE who then take a decision whether they should bring charges against the company and/or individuals under the HSWA and/or regulations.

Companies and Fatal Road Traffic Accidents

Where death has resulted from a road traffic accident caused by a defective vehicle or where a driver has been allowed to work significantly in excess of his permitted hours, you may need to consider whether the company is responsible under corporate manslaughter for any lack of maintenance of the vehicle concerned or for the drivers carelessness if that can be attributed to tiredness.

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Work-Related Deaths - A Protocol For Liaison

A Protocol entitled 'Work-Related Deaths: A Protocol for Liaison' www.hse.gov.uk/pubns/wrdp1.pdf has been agreed between HSE, the Association of Chief Police Officers (ACPO), British Transport Police, the Local Government Association the Welsh Local Government Association, Office of Rail Regulation, Maritime and Coastguard Agency, Chief Fire Officers' Association and the CPS setting out the principles for effective liaison in such circumstances.

The Protocol describes the initial action to be taken by investigators following a work-related death, how the investigation should be managed, the decision making process, issues such as disclosure and the coroner and the mechanisms by which the signatory agencies should cooperate.

The general principles in the Protocol include:

  •  The police will conduct an investigation where there is an indication that an offence of manslaughter, or some other serious criminal offence, has occurred;
  •  The HSE or Local Authority will also conduct an investigation relating to possible HSWA offences and will pass to the police any information relevant to any serious criminal offence;
  •  The decision to prosecute will be co-ordinated between the CPS and the HSE, or Local Authority on the basis of the Code for Crown Prosecutors and will be made without undue delay;
  • Bereaved families and witnesses will be kept suitably informed, see Care and Treatment of victims and witnesses elsewhere in the Legal Guidance;
  • Where the CPS decide not to prosecute for any offence, the HSE or Local Authority must be informed as soon as possible and the announcement of any such decision in the media should be co-ordinated with the HSE or Local Authority;
  • Where the CPS does decide to prosecute, we will keep the HSE or Local Authority advised of the progress of the case and notify them of the result;
  • In the event that the CPS is considering prosecution following a work-related death, the HSE or Local Authority will disclose to the CPS a copy of any report or other document submitted to the coroner. The report may not be disclosed to any other party without the consent of the HSE or Local Authority.

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Health And Safety At Work Act 1974

Section 2(1) places a duty on every employer to ensure, so far as is reasonably practicable, the health and safety at work of all his employees. Section 3 extends similar provisions for those other than employees who may be exposed to risks to their health and safety' as a result of the employers 'undertaking'.

In evaluating the degree of risk, foreseeability is an issue as the phrase qualifies the word 'ensure' - see R v Hatton Traffic Management (2006) EWCA Crim 1156). It is a qualified duty so one does not refer to this or section 40 as a 'defence'.

Note that the employer retains responsibility for his 'undertaking' even if he sub-contracts it, subject to the reasonably practicable steps to ensure that the contractor does not expose non-employees to risk (R v Associated Octel Co Ltd (1996) 1 WLR 1543).

It is not necessary that the public was in fact put in danger, simply that the possibility of danger existed and the defendants had not done all that was reasonably practicable to prevent it (R v Board of Trustees of the Science Museum (1993) 1 WLR 1171). Nor is it relevant that the defendant did not create the risk. 

In R v British Steel (1995) 1 WLR 1356 the defendant could not escape liability by showing that, at a senior level, it had taken steps to ensure safety if, at the operating level, all reasonably practicable steps had not been taken. Regulation 21 Management of Health and Safety Regulations 1999 states that it is no defence to claim that the breach was caused by an act or omission of an employee if it was reasonably practicable for the employer to have ensured safety. This confirms the decision in R v Nelson Group Services (Maintenance) Ltd (1999) 1 WLR 1527 that just because an employee has breached the Act this does not mean that the employer has also done so.

'Reasonably practicable' means that the risk of accident must be weighed up against the measures placed to eliminate the risk, including the costs involved. If the risk is small but the measures great he may be exonerated (Austin Rover Group Ltd v HM Inspector of Factories (1990) 1AC 619).

Section 7

States that 'it shall be the duty of every employee while at work, to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions while at work'.

This section does not create a free-standing duty of care. It describes the nature and standard of any common law duty that may exist which is to take reasonable care. A prosecution for gross negligence manslaughter on the basis of an omission can only be considered if the suspect's job required him to perform certain tasks (see R v Pittwood (1902) 19 TLR 37). It is also important to recognise the policy of the HSE (see below). They do not prosecute under this section unless there is real culpability in the employee's conduct. Thus they will not prosecute an individual where the employee's actions can be attributed to a systems error by the employer.

Section 33

Makes the failure to discharge a duty under sections 2-7 an offence. Note that there is an extended summary time provision in section 34.

Section 37

"Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he, as well as the body corporate shall be guilty of that offence... "

For the appropriate qualifying levels of 'similar officer', see R v Boal (1992) 3 All ER 177.

For the meaning of neglect in the context of section 37 see R v P Ltd [2007] EWCA Crim 1937 (This is in terms the offence of permitting the corporate body to commit an offence under HSWA. Please note this does not have an equivalent in the Corporate Manslaughter and Corporate Homicide Act).

This offence (which is used infrequently by the HSE) may be appropriate where individual gross negligence manslaughter cannot be proved but the director etc has a level of culpability that would, under the HSE Policy (see below) justify a prosecution. Thus if the directors etc know that essential safety equipment is required but have failed to provide it, the company will have committed an offence under section 2 or section 3 and the directors will be guilty under this section.

Section 38

HSE inspectors, and the Environment Agency are authorised prosecutors - anyone else requires the consent of the DPP. Thus make a file note that you are giving the necessary consent under this section even if you have already given your consent to a prosecution under the CMCHA.

Section 40

In a prosecution under this Act, it is for the defence to prove, on the balance of probabilities, that it was not reasonably practicable to have done more than was in fact done to satisfy the duty. (Note this section does not apply to Corporate Manslaughter).

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HSE Prosecution Policy

For reasons of fairness and consistency, CPS prosecutors considering offences under HSWA need to take account of and apply HSE enforcement policy.

The Health and Safety Commission's Enforcement policy statement can be found at:

http://www.hse.gov.uk/enforce/enforcementguide/index.htm

In addition the Health and Safety Executive has issued an Operational Circular: OC 130/8, (http://www.hse.gov.uk/foi/internalops/fod/oc/100-199/130-8.htm) which gives guidance on the public interest factors on which the HSE will rely.

Note that under section19 where an organisation is charged both under the Corporate Manslaughter Act and HSWA, the jury may return a verdict on both charges. (As a jury may take into account whether, and the extent to which, the organisation has breached health and safety, it is unlikely that the defence will plead guilty to HSWA unless the prosecution agrees not to pursue the corporate manslaughter charge).

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Sentencing

An organisation guilty of the offence will be liable to an unlimited fine. The Act also provides for courts to impose a publicity order, requiring the organisation to publicise details of its conviction and fine. Courts may also require an organisation to take steps to address the failures behind the death by means of a remedial order.

The Sentencing Guidelines Council has published the Guideline 'Corporate Manslaughter and Health and Safety Offences Causing Death' (published February 2010) available on their website.

The Guideline sets out seriousness factors together with aggravating and mitigating factors to take into account upon sentencing. It includes the principles the court should follow when assessing the level of fine and the various ancillary orders available.

The Role of the Prosecutor in Sentencing

The Guideline also describes the role of the prosecutor in the sentencing process.

Before the publication of the Guideline, it was incumbent upon the prosecution to prepare and serve a schedule of the aggravating features (which might have included a failure to heed warnings, a deliberate financial profit from a failure to take health and safety steps or of running a risk to save money).  If the defence intended to plead guilty, it had to prepare a schedule setting out the mitigating factors (R v Friskies Petcare (U.K.) Ltd (2000) 2 Cr App R (S) 401 as set out in R v Howe & Sons (Engineers) Ltd (1999) 2 All ER 249 and R v Balfour Beatty Infrastructure Services Ltd (2007) 1 Cr App R (S) 370 where mitigation might have included the degree of risk, the extent and duration of the breach, the company's resources and the effect of a fine on the company).

This practice has been endorsed by the SGC in the Guideline (at B11), but amended in two ways. Firstly, the lists of aggravating and mitigating factors in the Guideline are more extensive than those arising out of the case law; and, secondly, in terms of the schedule, prosecutors should now write out the facts of the case and identify the aggravating and mitigating factors. The defence may set out in writing any points on which it takes issue with the prosecutor's version of the facts. If an agreed version of the facts can be achieved, this must be in writing.

Prosecutors need to be familiar with the role they may have to play in relation to the provision of financial information to the court and in drafting publicity and remedial orders, each of which is described below.

Financial Information

A defendant's means are always relevant to the level of fine and the Guideline (from C14) sets out as best practice the need for the information to cover a period of three years, to include the date of the offence. It is important to note that the primary obligation is on the defendant, not the prosecution, to provide such information, though the Guidelines suggests that as a matter of practice it is helpful for the prosecution to call upon the defence to provide the information to both the court and prosecution. Where, despite the request, the defendant does not do so, the Guidelines indicate that it is helpful for the prosecution to assemble what can be obtained from public records. In practice, in such situations we should do what we can, working with the police, to obtain this information. Annex A to the Guideline describes what information is likely to be necessary. Note that if the defendant fails to produce sufficient or reliable information then the court will be justified in making adverse assumptions about the defendant's means.

On receipt of the information, it is not expected that the prosecution will analyse the figures, and the Guidelines acknowledge that we may not have the expertise to do so (although we can do so if it is genuinely necessary and if the expense can be justified). Necessary costs will ordinarily be recoverable from the defendant.

Setting the Fine

The Guideline goes into some detail about what considerations are relevant when setting a fine (see C12 to D26). There is no upper limit to the amount of the fine. Fines must be punitive but capable of being paid by an offending corporation. A simple correlation between turnover and profit is not appropriate but the court will look at both, plus the company's assets.

For corporate manslaughter the fine will seldom be less than £500,000 (and may be measured in millions of pounds).  However in the only conviction so far under the Act, Cotswold Geotechnical Holdings Ltd was fined £385,000 payable over 10 years (the company had virtually no assets).

For HSWA offences where death was caused the fine should seldom be less than £100,000 (and may be measured in hundreds of thousands of pounds).

Remedial Orders

Remedial orders, requiring the organisation to address the cause of a fatal injury, can be imposed for HSWA offences under section 42 HSWA and, for corporate manslaughter offences, under section 9 CMCHA.

On conviction, the court may make a remedial order but only on the application of the prosecutor specifying the terms of the proposed order. Prosecutors should consult the relevant regulatory authority as to which standards are appropriate.  The regulator will be likely to take a keen interest in the progress the organisation is making to address the cause of the fatality, including taking the steps identified in the remedial order. An order may require an organisation to supply details of compliance to the regulatory body.

The procedure to be followed is set out in the SGC Guideline from H 34:

'34. A defendant ought by the time of sentencing to have remedied any specific failings involved in the offence and if it has not will be deprived of significant mitigation.

35. If, however, it has not, a remedial order should be considered if it can be made sufficiently specific to be enforceable. The prosecution is required by section 9(2) CMCHA to give notice of the form of any such order sought; although there is no equivalent stipulation in the HSWA it is good practice to require the same notice. The Judge should personally endorse the final form of such an order.'

Any organisation that fails to take the action set out in the order can be prosecuted for failure to do so. This would be the responsibility of the CPS. An unlimited fine can be imposed on conviction.

Compensation

Although compensation is always an issue for the criminal courts to consider, prosecutors are reminded that the families of victims will be able to seek compensation via the civil courts, which are arguably best placed to assess the detail and complexities of a claim for damages as the SGC Guideline recognises (para E28),

Publicity Orders

These apply only to corporate manslaughter offences (section 10) committed on or after 15 February 2010. They are not applicable to HSWA offences. They are an important new tool designed, in particular, to punish large corporations that will be less affected by having to pay a big fine but which will additionally be punished by the impact of adverse publicity upon its reputation.

The procedure is described in the SGC Guideline from G30. It is not necessary for the prosecution to apply for an order because the court should normally make one of its own motion following any conviction for corporate manslaughter. However, the prosecution should suggest the terms of the order by providing the court, in advance of the sentencing hearing, with a draft form of the order. This should also be served on the defendant. It will be good practice to consult the regulatory authority about the terms of the draft order, since it will be able to offer invaluable advice about what will constitute effective publicity within the relevant industry. The judge should personally endorse the final form of the order.

Note that if a company fails to comply with either a remedial or publicity order, it commits an offence punishable with a fine.

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Referral To Special Crime Unit - Special Crime and Counter Terrorism Division

Cases which may result in proceedings for corporate manslaughter, with the exception of cases involving unincorporated partnerships, must be referred to Special Crime Unit in the Special Crime and Counter Terrorism Division, CPS Headquarters, so that an overview of all cases can be maintained. Casework location will then depend upon the complexity and sensitivity of each individual case.  Instances of gross negligence manslaughter involving partners in a firm have always been reviewed in Area and it has been decided that this should remain the case, even though under the Act a partnership may now be considered a corporation.

 

Cases involving unincorporated partnerships will be reviewed by Complex Casework Unit prosecutors who have suitable experience in this field.  See Referral of Cases within the CPS, elsewhere in the Legal Guidance.

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