The
Law Commission has recommended creating a new offence of corporate
manslaughter. What are the implications for companies? By Gillian Howard
There
have been a number of disasters in recent years, which have provoked demands
from Government and the public for the use in law of corporate manslaughter.
However, failures to prosecute successfully for this crime have led to a
perception among the public that the current law dealing with corporate
manslaughter is inadequate.
Suggestions
that the British Transport Police were considering bringing charges of
corporate manslaughter after the Hatfield rail disaster against individual
members of the senior management at Railtrack and Balfour Beatty – the firm
that carried out the maintenance at Hatfield – have failed to materialise.
The
perception that there is a serious lacuna in the law has been heightened
because the disasters have been followed by inquiries that have found corporate
bodies at fault, meriting very serious criticism. In some instances there have
been successful prosecutions for offences under the Health and Safety at Work
Act 1974.Â
New
proposals from the Home Office and the Law Commission include the Government’s
intention to amend Section 1 of the above Health and Safety at Work Act. This
makes it clear that one of their purposes is to prosecute offences of corporate
killing and to promote a new statute creating a new offence of corporate
manslaughter.
Current
law
The
governing principle in English law on the criminal liability of companies is
that those who control or manage the affairs of the company are regarded as
embodying the company itself. Thus in R v British Steel, 1995, IRLR 310, the
Court of Appeal held that the company could be successfully prosecuted under
the Health and Safety at Work Act 1974 for the unlawful death of a contractor
despite its arguments that at "the directing mind" level, the company
had taken reasonable care to delegate the supervision of the particular
operation to a responsible and competent person.
But
before a company can be convicted of manslaughter, an individual who can be
"identified as the embodiment of the company itself" must first be
shown himself to have been guilty of manslaughter. Only if the individual who
is the embodiment of the company is found guilty can the company be convicted.
Where there is insufficient evidence to convict the individual, any prosecution
of the company must fail.
There
can often be great difficulty in identifying an individual who is the
embodiment of the company and who is culpable. The problem becomes greater with
larger companies where overall responsibility for safety matters can be
unclear. In such circumstances it may be impossible to identify specific
individuals who may be properly regarded as representing the directing mind of
the company and who also possess the requisite mental state to be guilty of
man-slaughter. In such circumstances, no criminal liability can be attributed
to the company itself.
Law
Commission proposals
The
Law Commission, looking into the possible reform of the law on manslaughter,
has recommended that:
–
There should be a special offence of corporate killing, broadly corresponding
to the proposed offence of killing by gross carelessness.
–
The corporate offence should (like the individual offence) be committed only
where the corporation’s conduct in causing death fell far below what could
reasonably be expected.
–
The corporate offence should not (unlike the individual offence) require that
the risk be obvious or that the defendant be capable of appreciating the risk.
–
A death should be regarded as having been caused by the conduct of the
corporation if it is caused by a "management failure", so that the
way in which its activities are managed or organised fails to ensure the health
and safety of persons employed in or affected by its activities. Such a failure
will be regarded as a cause of a person’s death even if the immediate cause is
the act or omission of an individual.
–
Individuals within a company could still be liable for the offences of reckless
killing and killing by gross carelessness.
Who
would investigate and prosecute the new offence?
The
Home Office view is that the Health and Safety Executive and other prosecuting
authorities such as the police and the Criminal Prosecution Service should
each, where appropriate, play their part in investigating and prosecuting
corporate killing charges.
Who
would be prosecuted?
The
Government is still seeking views as to whether it would be appropriate to
prosecute individual officers for corporate killing and whether or not they
should be subject to terms of imprisonment. However, the Government is very
keen to ensure that under any new legislation, individuals who are shown to
have had some influence on or responsibility for the circumstances in which the
management failure – falling far below what could reasonably be expected – was
the cause of a person’s death, should at the very least be subject to
disqualification from acting in any management role in any undertaking carrying
on a business in Great Britain.
Two
specific offences are being suggested – that of "reckless killing"
and that of "killing by gross carelessness". The former would involve
the offender being aware that his action involves the risk of causing death and
here there would be a maximum penalty of life imprisonment. The latter offence
would apply where the risk would have been obvious to a "reasonable
person" and their conduct fell "far below what reasonably could be
expected".
These
two offences would apply equally to work-related deaths from accidents as well
as from occupational illnesses.
There
is an obvious need for law reform in this area. In a reported case – R v
Director of Public Prosecutions and others ex parte Timothy Jones, 2000 – the
DPP decision not to prosecute a company and its managing director was quashed
on judicial review. The DPP was ordered by the High Court to reconsider his
decision because he had ignored relevant considerations such as whether the
system of using the grab bucket and crane contrary to the manufacturer’s
instructions was "reckless" and whether the system of work which
decapitated a contractor on his first day at work was "safe". The DPP
was also found to have wrongly applied a subjective test when considering
whether a conviction was possible.
And
in the Attorney General’s reference No 2/1999, 15 February 2000, the Court of
Appeal Criminal Division was asked to give its opinion on two questions:
–
Can a defendant be properly convicted of manslaughter by gross negligence in
the absence of evidence as to the defendant’s state of mind?
–
Can a non-human defendant be convicted of the crime of manslaughter by gross
negligence in the absence of evidence establishing the guilt of an identified
human individual for the same crime?
These
questions arose out of Mr Justice Scott Baker’s decision concerning the
Southall Rail crash that it is a condition precedent to a conviction for
manslaughter by gross negligence for a guilty mind to be proved and that where
a non-human defendant is prosecuted, it may only be convicted via the guilt of
a human being with whom it is identified.
Their
Lordships answered "No" to both questions and refused to overrule Mr
Justice Scott Baker’s decision. Their Lordships referred to the Law
Commission’s proposed legislation and made it clear that until a new statutory
offence was created by Parliament, it was not for the courts to overturn
established precedent.
This
made it clear that the identification concept was paramount and that in each
case it was essential to identify an employee whose conduct could be held to be
that of the company.
In
other words not only must a death or serious injury occur but it has to be
established that one or more persons within the company knew there was such a
risk of death or serious injury and failed to act to prevent such disaster.
Finally,
in an appeal to the House of Lords against a prosecution for manslaughter – R v
Adomako – the House of Lords had to consider whether an anaesthetist should
have been convicted of manslaughter where the oxygen supply to a patient
undergoing an eye operation was cut off and where he failed to check the
connection until after the resuscitation procedures had been started.
His
appeal was rejected and the House of Lords held that a jury must consider
whether the breach of duty should be characterised as "gross
negligence" and therefore "as a crime".
Gillian
Howard, Hon FFOM, is an employment lawyer.
Prosecutions
under the Health and Safety at Work Act 1974
The
Herald of Free Enterprise disaster 6 March 1987 Â The jury at the inquest returned verdicts of unlawful killing in
187 cases and the Director of Public Prosecutions launched prosecutions against
seven individuals and the company. The case failed because the various acts of
negligence could not be aggregated and attributed to any individual who was a
directing mind.
The
King’s Cross fire 18 November 1987 which claimed 31 live  London Underground was criticised for not guarding against the
unpredictability of the fire and for no one person having overall
responsibility.
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The
Clapham rail crash 12 December 1988 that caused 35 deaths and nearly 500
injuries British Rail was
criticised for allowing working practices that were "positively
dangerous" and it was said that the errors went much wider and higher in
the organisation than merely to be the responsibility of those working that
day.
The
Southall rail crash 19 September 1997 that resulted in seven deaths and 151
injuries  In July 1999 Great Western Trains (GWT) pleaded guilty to
contravening Section 3(1) of the 1974 Act in that it failed to ensure that the
public were not exposed to risks to its health and safety. They received a
record fine for a health and safety offence of £1.5m for what Mr Justice Scott
Baker described as "a serious fault of senior management". The judge
had earlier ruled that a charge of manslaughter could notsucceed because of the
need to identify some person whose gross negligence was that of GWT itself.
