- What is Corporate Manslaughter?
- The Offence of Corporate Manslaughter
- Elements of the Offence
- The Organisation
- Is the proposed defendant a qualifying organisation?
- Government Departments
- Police forces
- Partnerships, trade unions and trade associations (if employers)
- Foreign Companies
- Company Subsidiaries, Sub-contractors and other overlapping Responsibilities
- Charities and Voluntary Organisations
- Relevant Duty of Care
- Deaths in custody
- The Gross Breach
- Senior Management
- Consent to Prosecute and Jurisdiction
- Territorial Jurisdiction
- Consent to Prosecute
- Corporate Manslaughter and the Public Interest test
- Cases where individual gross negligence manslaughter may be more appropriate
- Cases where a charge of Corporate Manslaughter is academic
- When it is appropriate to charge both corporate and individual gross negligence manslaughter
- Alternative charges and additional defendants under HSWA 1974
- Health And Safety At Work Act 1974
- Work-Related Deaths - A Protocol for Liaison
- Charging Practice
Corporate Manslaughter is an offence created by Section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007 (‘the Act’). It came into force on 6th April 2008.
The offence was created to ensure that companies and other organisations can be held properly accountable for very serious failings resulting in death. The offence of gross negligence manslaughter is abolished insofar as it relates to companies and other organisations.
Corporate Manslaughter is wider in scope than the previous common law offence. It continues to apply only to the most serious corporate failings. There is a high threshold for liability, requiring proof of a gross breach of the relevant duty of care. However, it is no longer necessary to show that a person who was the ‘controlling mind’ of the organisation was personally responsible for the offence.
Under the 2007 Act, the offence of Corporate Manslaughter relates to the way in which the relevant activity was managed or organised throughout the company or organisation. Wider considerations such as the overall management of health and safety, the selection and training of staff, the implementation of systems of working and the supervision of staff can be taken into account.
An organisation is not liable if the failings were exclusively at a junior level. The failings of senior management must have formed a substantial element in the breach. However, the failings at senior management level do not of themselves have to amount to a gross breach of duty. Liability for the offence is assessed by looking at the failings of the organisation as a whole.
The prosecution must prove that the breach of duty was causative of death. The test is whether the breach made a more than minimal contribution to the death. Because the defendant is a corporate body, the penalty must be a fine. The Court also has power to make ancillary orders including Remedial Orders and Publicity Orders.
A definitive sentencing guideline has been published by the Sentencing Council with effect from 1st February 2016. The level of sentence will depend on the size of the organisation. The sentence range is specified as £180,000 to £20 million.
The offence of Corporate Manslaughter is indictable only. In England and Wales, proceedings may not be instituted without the consent of the Director of Public Prosecutions. Every Crown Prosecutor may give consent and it is recommended that the file is endorsed with specific reference to the consent under Section 17 of the Act.
Cases which may result in proceedings for corporate manslaughter, with the exception of cases involving unincorporated partnerships, must be referred to the Special Crime Unit, Special Crime and Counter Terrorism Division.
What is Corporate Manslaughter?
The statutory offence of Corporate Manslaughter was brought in to ensure that
there were “effective laws in place to prosecute organisations where they have paid scant regard to the proper management of health and safety with fatal results” (Government reply to the First Joint Report from the Home Affairs and Work and Pensions Committees, 2005/06 HC 540).
The offence applies only to certain organisations, as defined by the Act. They include private bodies such as limited companies and partnerships. Public bodies such as local authorities and NHS Trusts can also be held liable, on the grounds that they are bodies incorporated by statute (see section 25 and para 15 of the explanatory notes). Specified government departments and police forces can also be held liable. Individuals cannot be prosecuted for the offence, whether as an accessory or otherwise.
The offence was created to overcome the limitations of the common law offence of gross negligence manslaughter as applied to companies and other incorporated bodies. Under the common law, in order for a company to be guilty of the offence it was necessary for a senior individual who could be said to embody the company (also known as “the controlling mind”) to be guilty of gross negligence (See for example R v P&O Ferries (Dover) Ltd (1991) 93 Cr. App. R. 72). This was known as the ‘identification principle’.
The effect of the 2007 Act was to widen the scope of the offence so that the focus of the offence is now on the overall management of the organisation’s activities rather than the actions of particular individuals.
Within the framework of the Act, it is possible for the failings of a number of individuals within the organisation to be aggregated. However, it remains the case that the offence applies only in respect of a ‘gross breach’ of a relevant duty of care, reflecting the same standard of culpability as the common law offence.
The Offence of Corporate Manslaughter
The offence is created by Section 1 of the Act, which provides as follows:
“Section1. 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 under this section 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).
- An organisation that is guilty of corporate manslaughter or corporate homicide is liable on conviction on indictment to a fine.”
Elements of the Offence
The following needs to be proved:
- the defendant is a qualifying organisation;
- the organisation owed a relevant duty of care to the deceased;
- there was a gross breach of that duty by the organisation;
- the way in which its activities were managed or organised by its senior
- management was a substantial element in the breach; and
- the gross breach of the organisation’s duty caused or contributed to the death.
Is the proposed defendant a qualifying organisation?
Section 1(2) states that the offence applies to the following types of organisation:
- a corporation;
- a government department or other body listed in Schedule 1;
- a police force; or
- a partnership, or a trade union or employer’s association, that is also an employer.
Some of these are defined within the Act, others as a matter of general law.
‘Corporation’ is defined in section 25. It includes “any body corporate wherever incorporated”. This therefore includes limited companies, public limited companies (PLCs) and companies limited by guarantee, as well as limited liability partnerships (LLPs). Corporations sole (which are certain public offices held by individuals) are excluded.
The term ‘corporation’ also includes public bodies which are incorporated by statute. Examples include NHS Foundation Trusts, county councils, district councils and (in Wales) unitary authorities.
Section 11(1) and Schedule 1 of the Act provide that specified government bodies can be prosecuted for Corporate Manslaughter. The statute provides an exception to the general rule that a crown body cannot be prosecuted for a criminal offence (see section 40 of the Crown Proceedings Act 1947).
Schedule 1 lists the government bodies to which the offence applies. It includes the major departments of central government such as the Department of Health, Department for Education, DEFRA, Ministry of Defence and the Home Office, as well as the Welsh Government.
Section 16 contains provisions which identify the relevant body to prosecute where functions have been transferred from one public body to another since the date of the offence.
A police force may be prosecuted for Corporate Manslaughter. For the purposes of the Act, police officers are treated as employees of the force (sections 1(2)(c) and 13). It is important to note that it would be the force itself which would be charged. This contrasts with the Health and Safety at Work etc Act 1974 (HSWA) and health and safety regulations, under which it is the Chief Constable who would be the defendant (section 51A HSWA).
Partnerships, trade unions and trade associations (if employers)
A partnership can be prosecuted for Corporate Manslaughter, but only if it is an employer. As long as the employer condition is satisfied, the relevant duties of care are not limited to employees (sections 1(2)(d) and 14).
The prosecution must be against the partnership as a body, not its individual members. The liability to pay the fine falls on the funds of the partnership only, not the personal assets of its individual members. The police should obtain a copy of any written partnership agreement to confirm the identities of the partners.
A trade union or trade association can be prosecuted for the offence, but again only if it is an employer (section 1(2)(d)).
The offence of Corporate Manslaughter applies to all companies and other corporate bodies operating in the UK, whether they are incorporated in the UK or abroad; see section 25. Section 28 makes express provision as to territorial jurisdiction, the determinative factor being whether the harm from which death resulted occurred within the United Kingdom (see further below).
Company Subsidiaries, Sub-contractors and other overlapping Responsibilities
Many companies operate through a group structure involving parent and subsidiary companies. Care should be taken to identify the division of responsibilities within the group to ensure that the right company is correctly identified for prosecution.
In principle, more than one company within a group might be prosecuted for an offence if there were gross failings within each organisation which separately contributed to the death.
For the purpose of sentence, the general rule is that it is only the resources of the defendant company which are considered. However, in exceptional circumstances the resources of a parent company can be taken into account. The Definitive Guideline states: “Normally, only information relating to the organisation before the court will be relevant, unless it is demonstrated to the court that the resources of a linked organisation are available and can properly be taken into account.”
Similarly, an activity might involve several organisations working together, often in a chain. Examples include: a construction project involving a principal contractor and sub-contractor; premises owned by a landlord, occupied by a tenant and managed by a facilities management company; or an airport where the management of the site, the provision of services and the flight operations are all provided by separate companies.
In each case, it is necessary to consider separately whether the company or organisation owed a relevant duty of care to the deceased and if so whether there was a gross breach. In principle, more than one company might be prosecuted for an offence.
Charities and Voluntary Organisations
The designation of an organisation as a charity does not, of itself, signify its legal structure. The Charities Act 2011 encompasses both incorporated and unincorporated organisations.
Charitable companies and charitable incorporated organisations can be prosecuted for the offence as they are corporations within the meaning of the Act. An unincorporated charity, operating through trustees, could only be liable for the offence if its underlying legal structure was an organisation to which the Act applies, such as a partnership with employees.
Section 18 of the Act provides that an individual cannot be guilty of aiding, abetting, counselling or procuring the commission of an offence of Corporate Manslaughter, nor can they be guilty of encouraging or assisting crime contrary to Section 2 of the Serious Crime Act 2007 by reference to an offence of Corporate Manslaughter.
If an individual is to be prosecuted for their personal failings the appropriate charge is gross negligence manslaughter contrary to common law. See below for guidance on charging decisions.
Relevant Duty of Care
Did the defendant owe a relevant duty of care to the deceased?
“Relevant duty of care” is defined by Section 2(1) of the Act.
A relevant duty means any of the following duties in the law of negligence:
- a duty owed by an employer to its employees and other workmen;
- a duty owed as an occupier of premises;
- a duty owed in connection with the supply of goods or services;
- a duty owed in connection with construction or maintenance operations;
- a duty owed in connection with the carrying on of any other commercial activities;
- a duty owed in connection with the use or keeping of any plant, vehicle or other thing; or
- a duty owed by reason of being responsible for the safety of a person in custody, secure accommodation or as a detained patient.
These are duties which arise under the civil law of negligence. The 2007 Act does not create any new duties.
For the purposes of the Act, the law of negligence is defined as including the duties which arise under the Occupiers’ Liability Act 1957, the Defective Premises Act 1972 and the Occupiers’ Liability Act 1984 (section 2(7). However, statutory duties which arise under the Health and Safety at Work etc Act 1974 and under health and safety regulations are not ‘relevant duties’ for this purpose.
Contributory fault on the part of the deceased is not a bar to a prosecution, nor is it a defence that the deceased was knowingly engaged in a criminal act (see R v Wacker (2002) EWCA Crim 1944, R v Willoughby (2004) EWCA Crim 3365). In workmen cases in particular, it is clear that a duty to take reasonable care may require the defendant to take steps to ensure that the safeguards which it has put in place are in fact observed by the deceased (see Bux v Slough Metals (1974) 1 All ER 262).
Determining the existence of a duty of care
In many cases, the existence of a duty of care will be obvious from the relationship between the parties (eg. employer and employee). In other cases, it will be necessary to analyse the facts in order to determine whether, in accordance with the ordinary principles of law of negligence, the defendant had owed a duty of care to the deceased (see Caparo Industries v Dickman (1990) 2 AC 605).
Section 2(5) states that for the purposes of the Act, the question of whether a particular organisation owes a duty of care to a particular individual is a question of law, and that the judge must make any findings of fact necessary to decide that question. Note that this is different from the approach to a case of gross negligence manslaughter at common law, where it is the jury who determine whether the facts establish the existence of a duty of care (see R v Evans (Gemma) (2009) 2 Cr App R 10).
Deaths in custody
The provisions relating to deaths in custody are set out in Section 2(1) (d). These came into force on 1 September 2011. They encompass detention in prison, detention in police custody, immigration detention, transport of prisoners, detention of children and young people in secure accommodation and detention under the Mental Health Act 1983.
Sections 3 to 7 of the Act specify a number of exceptions from liability relating to the actions of public bodies. These are broadly cases which involve either wider questions of public policy or public emergencies.
The following are exempt altogether from liability:
- decisions of a public authority in relation to issues of public policy (such as the allocation of public resources);
- the exercise of exclusive public functions under Crown prerogative or statute;
- the undertaking of statutory inspections;
- military operations in which members of the armed forces come under attack, or training of a hazardous nature; and
- police operations for dealing with terrorism, civil unrest or serious disorder in which officers come under attack.
Many of these exemptions reflect a distinction already recognised in the law of negligence between policy and operational matters, and that issue may overlap with the question of whether a duty of care arises (see for example Barrett v Enfield LBC (2001) 2 AC 550). The exemption applies equally to policy decisions by central and local government. Specialist advice may have to be sought in respect of a decision to prosecute a public authority which potentially involves such considerations.
In other cases specified in the Act, there are restrictions on the extent of the liabilities of certain public organisations. These cases include:
- other policing operations;
- responses by the emergency services to emergency circumstances (but not exempting the provision of medical treatment);
- the duties of local authorities relating to child protection; and
- duties relating to the provision of probation services.
Detailed consideration of the potential application of exemptions and partial exemptions is necessary when considering a prosecution of a public authority.
The Gross Breach
Was there a gross breach of the relevant duty of care?
The prosecution must prove that there was a gross breach of the relevant duty of care.
Section 1(4)(b) contains a definition of what amounts to a ‘gross breach’. It states: “a breach of a duty of care by an organisation is a “gross” breach if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances”.
Notwithstanding the statutory definition, as a matter of practice the Court will often direct the jury in accordance with the language used in respect of the common law offence of gross negligence manslaughter. Various formulas have been used, including ‘truly, exceptionally bad’ and ‘so bad that it amounts to a crime and deserving of punishment’; see in particular R v Adomako (1994) 99 Cr App R 362. The duty of the Judge is to bring home to the jury the very high threshold which amounts to gross failure.
Section 8 sets out a non-exhaustive list of factors which the jury must consider in determining whether there has been a gross breach of duty. The Section 8 factors include:
- whether the defendant failed to comply with any health and safety legislation;
- if so, how serious that failure was;
- how much of a risk of death the failure posed;
- the extent to which the evidence shows that there were attitudes, policies,
- systems or accepted practices within the organisation that were likely to have
- encouraged any such failure;
- the contents of any health and safety guidance that relates to the alleged breach.
- Evidence of failings which are unrelated to the fatal incident may be relevant, insofar as they show a poor attitude to health and safety within the organisation.
Section 8(4) makes it clear that this does not preclude the jury from taking into account any other factors which they may consider relevant. For example, evidence of a previous ‘near miss’ incident, a failure to follow the organisation’s own written procedures, or evidence of cost cutting may all be relevant.
Foresight and recklessness
It is not necessary to prove that there was a serious and obvious risk of death: a corporation is an inanimate body which does not have the capacity to foresee risk. Nor is it necessary to show that individuals within the organisation were reckless to the safety of others. However, evidence that the risk was, or should have been, obvious to individuals within the organisation would be evidence which the jury could take into account in determining the whether there were gross failings. Evidence of reckless conduct, especially at senior management level, would be strong evidence of a gross breach. (Legislating the Criminal Code: Involuntary Manslaughter (Law Com No. 237) at para 8.3; R v Misra & Srivastava (2005) 1 Cr App R 21 at para 56; R (Rowley) v DPP (2003) EWHC 693.)
The use of expert evidence
In many cases, expert evidence will be critical to establishing whether or not there was a gross breach of duty. For example, it may be relevant to consider whether the organisation conducted its activities in accordance with published guidance and/or the recognised standards of the industry.
Expert evidence may be required to assist both in relation to the activity which directly related to the death (eg. the system of working adopted, or the suitability of equipment) and also to the adequacy of the organisation’s overall systems for the management of health and safety and the supervision of its staff. Expert evidence on the former is likely to be industry-specific; on the latter, opinion evidence may be provided by experts within the HSE or by independent health and safety consultants. In a medical case, expert evidence as to arrangements for clinical governance and supervision may also be relevant.
Reports containing expert opinion evidence should be prepared in accordance with Part 19 of the Criminal Procedure Rules. The role of the expert is to assist the jury as to what might be required to discharge the standard of care and the extent to which the defendant fell short, where appropriate providing examples which allow the jury to assess the extent of the failing or yardsticks against which the failings can be measured. However, the expert cannot usurp the function of the jury by simply asserting the opinion that the failings were gross (see R v Sellu (2017) 1 Cr App R 24 at paras 129-143).
Expert evidence is not mandatory and may not be needed on issues which are already clear from the evidence. The extent (if at all) to which it will be necessary will be determined by the facts of the case.
Was the way in which activities were managed or organised by senior management a substantial element in the breach?
The senior management element was included in the legislation in order to ensure that an organisation would not be held liable for management failures occurring solely at a relatively junior level. It was recognised that it would not be fair to hold the corporation as a whole responsible for the offence which was due to failures solely at a low level in the organisation. However, this should be viewed in the context of Parliament’s intention to create a wider offence than the ‘identification’ principle previously allowed.
‘Senior management’ is defined in Section 1(4) as follows: “‘senior management’, in relation to an organisation, means the persons 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.”
This is wider than the former test of the ‘controlling mind’ of the organisation and is not limited to directors or equivalent. Those ‘who play significant roles’ will include executives and managers at the top of the organisation and could also encompass, for example, a regional manager provided that the region constituted “a substantial part” of the activities of the organisation.
Decisions as to who constitutes the senior management of an organisation will often be fact-specific and it may be necessary to consider factors such as the size of the organisation, the number of tiers of management, the diversity of the organisation's activities and individual job descriptions. It is essential to identify senior management, for example from an ‘organogram’ of its structure, and to use that information to determine whether a substantial element of the breach was at a senior management level.
‘Substantial' is not defined within the Act. It signifies something which contributed to the breach in a way which is more than trivial but less than total. It would be for a jury to decide whether the contribution was ‘substantial’ in the context of the case. (For a discussion of the meaning of ‘substantial’ in the context of the partial defence of diminished responsibility, see R v Golds (2017) 1 Cr App R 18).
The focus of this element is on “the way in which its activities are managed or organised by its senior management”. A one-off failure may not suffice and systemic failings are likely to be more relevant (see R v Cornish and Maidstone & Tunbridge Wells NHS Trust (2015) EWHC 2967 at Para 99).
The failings of senior management do not of themselves have to amount to a gross breach of the duty of care; such an approach would be tantamount to the identification principle. The assessment of grossness relates to the failings of the organisation as a whole. The test is whether senior management failings made a substantial contribution to a state of affairs within the organisation which was, when taken as a whole, a gross breach of the duty of care owed to the deceased.
Was the gross breach of duty a cause of death?
The prosecution must prove that the relevant breach of duty was a cause of death. It does not need to be the sole cause nor even the main cause, as long as it was an operating cause which made a more than minimal contribution to the death (see R v Hennigan (1971) 3 All ER 133, R v Hughes (2014) 1 Cr App R 6).
Causation is established according to the principles of the criminal law of homicide. The exceptional rules on causation developed for the purposes of civil law on industrial disease (eg. Barker v Corus (2006) UKHL 20) do not apply to this offence.
Particular care must be taken in cases of failure by omission, such as a failure to provide effective medical treatment or a failure to protect the deceased from self-harm. The prosecution must prove that, but for the alleged gross breach of duty, the deceased would have survived, or at least that they would not have died at that time or in those circumstances.
Where the prosecution is relying on a series of failings over a period of time, the question of whether the deceased would have survived but for the gross breach of duty may require very careful analysis of the timeline to identify the time and circumstances in which the gross breach was operative, and whether intervention at that time would have avoided death (see R v Sellu (2017) 1 Cr App R 24 at paras 117 to 128; R v Cornish and Maidstone & Tunbridge Wells NHS Trust (2015) EWHC 2967).
Consent to Prosecute and Jurisdiction
Section 28 makes express provision in respect of territorial jurisdiction. It provides that “Section 1 applies if the harm resulting in death is sustained in the United Kingdom”. The section also makes provision for British-registered vessels and for ships in UK territorial waters.
Section 28 very clearly focusses on the place where harm results, not the location where the breach of duty occurred.
Even if a breach of duty occurred within England and Wales, there is no jurisdiction if the harm occurs to a person overseas. For example, a holiday company could not be held liable for the death of a customer abroad even if organisational or management failures at its offices in the UK had played a substantial part in a breach of duty to the customer. In this respect, the scope of the Act is potentially narrower than the common law (see R v Sheppard (2010) 1 Cr. App. R. 26)
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.
Corporate Manslaughter and the Public Interest test
In a case where the evidential test is clearly met, it will usually be appropriate to proceed with a charge of Corporate Manslaughter as Corporate Manslaughter is an inherently serious offence.
If the evidential test is met, there is by definition evidence:
- that the organisation bears a high degree of culpability; and
- death resulted from the organisation’s failings.
There may also be evidence of a wider impact on the community, for example on the family of the deceased or on other employees.
There is a strong public interest in securing corporate accountability for serious offending. A charge of Corporate Manslaughter will be more likely where there is evidence of a generalised failing within company management processes as opposed to distinct liability on the part of identifiable individuals.
Cases where individual gross negligence manslaughter may be more appropriate
The evidence may indicate that the offence was due to the gross failings of identifiable directors or managers. In such a case it may be more appropriate to charge the responsible individual(s) with gross negligence manslaughter rather than the corporate offence.
This situation is more likely to arise in the case of small and micro-companies, where the whole or very largest part of the failing is the responsibility of one person whose personal activity represents a large part of the company's undertaking. In that situation, the justice of the case can best be met by prosecution of the individual(s) rather than of the company for the manslaughter offence. It may be appropriate in such circumstances to charge the company with an offence under the Health and Safety at Work etc Act 1974 (HSWA).
The effective presentation and management of the case is a relevant consideration. Combining charges of Corporate Manslaughter and gross negligence manslaughter can make the jury’s task more complex. There are significant differences in the legal elements of the offences.
Cases where a charge of Corporate Manslaughter is academic
Financial circumstances can mean that the prosecution of a limited company becomes academic. A company may have become insolvent, or there may be clear evidence that it has little by way of net assets to pay a fine. Fines for health and safety offences involving death can be very substantial and sometimes the limiting factor is the financial resources of the company rather than the offence with which it is charged. Charging decisions should be proportionate and proper regard should be had to the public expense of a prosecution.
Notwithstanding financial circumstances, in an appropriate case it may nonetheless be in the public interest to proceed with a case of Corporate Manslaughter in order to ensure that the seriousness of an offence is properly marked.
It is possible to set up an alert from Companies House and liaise with the HSE, who can register an objection with Companies House to the striking off of a company under criminal investigation and seeking dissolution. In this regard, the following should be noted:
- where a company is in liquidation there is no bar to commencing a prosecution (and the company can be prevented from being dissolved);
- where a company is in administration, leave of the Companies Court is required before any prosecution can be instituted;
- where a company has been dissolved and its name removed from the register it no longer exists and (without application to reinstate) cannot be prosecuted.
When it is appropriate to charge both corporate and individual gross negligence manslaughter
Decisions on charge are fact-specific and none of the above precludes a prosecution involving charges of both Corporate Manslaughter and individual gross negligence manslaughter if it is merited on the evidence in a particular case.
The evidence may clearly show gross failings on the part of individuals within the company as well overall failings of the organisation including its senior management.
Alternative charges and additional defendants under HSWA 1974
Many cases in which a charge of Corporate Manslaughter is under investigation will involve liaison with the Health and Safety Executive (HSE), a local authority or specialist regulator.
Prosecutors may have to consider the inclusion of charges under the HSWA 1974 or health and safety regulations when charging Corporate Manslaughter, gross negligence manslaughter or other related offences.
The Corporate Manslaughter and Corporate Homicide Act 2007 contemplates the joinder of charges under HSWA. Section 19 provides that where an organisation is charged both with Corporate Manslaughter and HSWA offences, the jury may return a verdict on both (or all) charges.
Consideration should also be given to the charging and joinder of other defendants. It does not follow from a decision to charge an individual or company with manslaughter that other culpable individuals can or should escape liability for their own failings.
CPS prosecutors should always take a decision to charge HSWA offences in accordance with the Code for Crown Prosecutors. Prosecutors should where appropriate also have regard to the HSE’s Enforcement Policy Statement and any guidance which the HSE may provide in the individual case, but ultimately it is for the CPS Prosecutor to decide in accordance with the Code what charges are appropriate. Prosecutors should note that they have considered HSE policy and if HSE policy would ordinarily not suggest a prosecution, the rationale for prosecuting under the Code should be noted clearly.
Health And Safety At Work Act 1974
Duties of an employer (Sections 2 and 3)
The Health and Safety at Work etc Act 1974 impose two overarching duties on an employer, breach of which is an offence. The offences are concerned with the creation of a risk of harm. There is no requirement to prove that the offences in fact caused any actual harm (R v Chargot Ltd (2009) 1 WLR 1).
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 the protection of those other than employees who may be exposed to risks to their health and safety as a result of the employers 'undertaking'. There is no limit on the application of this provision to other persons: they may for example be other people working in the undertaking (eg. sub-contractors), visitors to the defendant’s premises, customers using their services or just members of the public generally who may be affected (see R v Tangerine Confectionery (2011) EWCA Crim 2015).
In both sections, the words “so far as is reasonably practicable” qualify the employer’s duty. In assessing what was reasonably practicable, the extent to which the danger was foreseeable is a relevant factor (see R v HTM Ltd (2006) EWCA Crim 1156; R v Tangerine Confectionery).
Note that the employer retains responsibility for his 'undertaking' even if he subcontracts performance, subject to taking 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).
In R v British Steel (1995) 1 WLR 1356 it was held that 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.
'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 the defendant may be exonerated (Austin Rover Group Ltd v HM Inspector of Factories (1990) 1 AC 619).
Duties of an employee (Section 7)
Section 7 specifies the duty which is on an employee at work. It 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'.
As with Sections 2 and 3, a breach of the duty is an offence. However, the requirements of the section are very different. Whereas Sections 2 and 3 create a duty to ensure safety, an alleged breach of Section 7 involves an allegation of a failure to take reasonable care. A charge under this section would have to specify the acts and omissions which are relied upon as breaches (R v Beckingham  EWCA Crim 773).
It is also important to have regard to the policy of the HSE (see below). Charges under Section 7 are rare and the focus of an investigation will usually be on the employer and/or on the directors and managers.
Offences (Section 33)
Section 33 makes the failure to discharge a duty under sections 2-7 an offence.
Breach of provisions of the health and safety regulations (which are made under HSWA) are also an offence.
Liability of Directors and Managers (Section 37)
Section 37 provides: “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  EWCA Crim 1937
This offence may be appropriate where individual gross negligence manslaughter cannot be proved but the director etc has a level of culpability that would 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.
Authority to Prosecute (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.
Reasonable Practicability (Section 40)
In a prosecution under HSWA, 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.
Work-Related Deaths - A Protocol for Liaison
A Protocol entitled Work-Related Deaths: A Protocol for Liaison 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. To accompany the protocol is the Work Related Death Protocol: Practical Guide.
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 a charge or charges of Manslaughter or Corporate Manslaughter in such cases should be taken by the CPS following consultation with any other responsible agency, such as the HSE or Local Authority. This includes consultation about pursuing other offences in addition to homicide related offences. The decision will be made by the CPS 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.
As with any other prosecution, any decision to charge offences under HSWA which is taken by a CPS Prosecutor should be taken in accordance with the Code for Crown Prosecutors.
CPS prosecutors considering offences under HSWA should also have regard where appropriate to the Health and Safety Executive’s Enforcement policy statement. This can be found at: http://www.hse.gov.uk/pubns/hse41.pdf. In the interests of fairness and consistency of approach, this should form part of the overall assessment of the public interest at stage two of the Code test.
Prosecutors should bear in mind that the considerations for the CPS will be different. The cases of this nature which the CPS will encounter will usually involve either death or other very serious harm. In ordinary circumstances, a CPS Prosecutor will only be considering charges under the HSWA if she or he has already decided to charge another (usually more serious) criminal offence.
This may be a charge of manslaughter or Corporate Manslaughter, but the issue may also arise for example in cases involving causing death or serious injury by dangerous or careless driving. The Code requires consideration to be given to the culpability of individual defendants. The regulatory objectives of the Health and Safety Executive are different from those of the police and CPS and differences of approach may be appropriate. If a different approach has been taken, it is important to note why.
Alternative Charges and Additional Defendants
Where a charge of Corporate Manslaughter is brought, it will often be appropriate to include charges under Section 2 and/or 3 HSWA as an alternative. The inclusion of such a charge should be considered not merely as a ‘fall-back’ for the prosecution. Both the prosecution and the Court have a duty to ensure that any obvious available alternative should be left to the jury to avoid the risk of unfairness to the defendant from pressure to convict of the more serious offence. Corporate Manslaughter and HSWA involve different elements, but for all practical purposes they will often stand as alternatives (see R. v. Coutts (2007) 1 Cr App R 6).
Consideration may also have to be given to the inclusion of charges contrary to subsidiary regulations. They are matters which the jury may have to consider in any event as factors relevant to Section 8 CMCHA 2007, and their inclusion in the indictment may be appropriate for the presentation of the case.
As noted above, when charging a defendant with Corporate Manslaughter it will usually be appropriate to charge other defendants who face related charges under HSWA at the same time. It is generally in the interests of justice for related cases to be charged and heard together, to avoid duplication of resources and the risk of inconsistency in outcome.