SPECIAL ISSUE ON CORPORATE 'MANSLAUGHTER'

The second edition of ‘corporate crime update’ focuses on the offence of manslaughter and how it relates to work-related deaths. It sets out the law of manslaughter, details convictions, acquittals and ongoing cases and summarises the impact of the Government’s proposed new offence of ‘corporate killing’.

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Record Number of Manslaughter Prosecutions
HSC's New Enforcement Management Model
The Offence of Manslaughter
The Proposed Offence of ‘Corporate Killing’
Current Manslaughter Prosecutions
Manslaughter Convictions of Company Directors etc.
Manslaughter Acquittals of Company Directors etc.
Workers who have died between February to May 2002

Record Number of Manslaughter Prosecutions
Research by the CCA shows that the number of company directors and business owners prosecuted for manslaughter concerning a work-related death has significantly increased in recent years. It indicates that new investigation and prosecution procedures, which were adopted in April 1998 by the Police, the Health and Safety Executive (HSE) and the Crown Prosecution Service (CPS), have had a significant impact upon the way the criminal justice system deals with work-related deaths.

The research compared the number of manslaughter prosecutions concerning deaths occurring before and after April 1998. In the fifty year period prior to 1998, only ten manslaughter prosecutions involving directors or business owners have been identified as having been prosecuted by the CPS. However, in the last four years, there have been at least ten completed prosecutions as well as five on-going cases which will come to trial this year.

Though the numbers of prosecutions since April 1998 is only a very small proportion of the total number of work-related deaths, the figures do represent a significant increase in the prosecution rate.
The research however also shows that most cases result in acquittals. Only three of the 11 completed cases since April 1998 have resulted in convictions.

The ongoing prosecutions involve:

• the managing director of Jack Robinson (Trawlers) Ltd charged with the manslaughter of seven members of a fishing crew who died in January 2000.
• two directors of Teglgaard Hardwood (UK) Ltd charged with the manslaughter of their employee Christopher Longrigg who died in April 2000.
• director of Philip Services (Europe) Ltd charged with the manslaughter of contract worker Christopher Shute who died in August 2000.
• director of IMCO Plastics Ltd charged with the manslaughter of three members of the public who died in 1998.
• two owners of two cleaning businesses charged with the manslaughter of two workers, Glenn Whalley and Anthony Redfern in who died in October 2000

In total, the research shows that six company directors, two farm owners and one sole trader have been convicted for manslaughter. In addition, three companies have been convicted. All the convictions so far concern people who ran relatively small companies or businesses.

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HSC's New Enforcement Management Model
In May 2002, the HSE launched its ‘Enforcement Management Model’ (EMM) which aims to assist inspectors in deciding the appropriate enforcement action (i.e. oral or written advice, imposition of notices or prosecution) to be taken in particular cases. It aims to ensure that inspectors make decisions that are in line with the Health and Safety Commission’s (HSC) revised Enforcement Policy Statement (see Update, Spring 2002) and to ensure that there is greater consistency in the actions taken by inspectors faced with similar sets of circumstances.

The EMM requires inspectors to input the following information into a number of ‘risk tables’ and flow charts including details of:

• the seriousness of any risk identified – i.e. the nature of the harm that could be reasonably expected to occur and the probability of it happening;
• the level of risk that the law allows and the gap between this and the actual risk identified by the inspector; he reason for non-compliance;
  
• whether harm has actually been caused by the non-compliance;
• current levels of compliance over a range of health and safety issues;
• attitude of the duty holder;
• previous enforcement action taken against the duty holder; and
• other public interest factors

Depending on the information entered, the EMM will suggest to the inspector what enforcement action should be taken in that particular case.

The HSE requires its inspectors to use the EMM for all decisions involving deaths and major injuries, and prior to making any decision to prosecute.

To download the EMM, click here [PDF doc]

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The Offence of Manslaughter
The offence of manslaughter is committed when an individual causes the death of another through his or her gross negligence. It is necessary to prove that:

• the defendant had a ‘duty of care’ toward the person who died;
• the defendant was in breach of that duty;
• that the breach of duty was ‘gross’;
• the breach was a ‘significant cause’ of the death.

The same test applies whether the individual being prosecuted is a director or worker.

In order for a company to be prosecuted for manslaughter, the individual being prosecuted must be a director or senior manager of that company (i.e. a ‘controlling mind’ of the company). If such an individual is charged with manslaughter, the company can then also be prosecuted. The guilt or innocence of the company is then dependent on the guilt or innocence of the individual.

No organisation other than a company can be prosecuted for manslaughter.

The factors that tend to increase the likelihood of prosecution of directors (and their successful conviction) appear to be:

• evidence that a director received advice from an HSE inspector, a worker or some other person that a particular practice – which was a cause of the death – was unsafe;
• other evidence that a director was aware that a practice – which caused the death – was obviously dangerous.
• evidence of previous injuries or near misses that should have alerted the director to safety problems.

A director can, however, be convicted even if there is no evidence that he actually knew that a particular practice was unsafe, as long as the jury considered that his conduct was grossly negligent.

To read more about the offence of manslaughter, click here

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The Proposed Offence of ‘Corporate Killing’
The Government proposes to enact a new offence of ‘corporate killing’. This would allow a company, or any other ‘employing’ organisation, to be prosecuted without the need to prosecute an individual director or senior manager. An organisation would commit the offence of ‘corporate killing’ if it could be shown that:

• there was a ‘management failure’ on the part of the organisation;
• the management failure ‘fell far below’ what could be expected;
• the management failure was ‘a cause’ of the death;

An organisation has a management failure if the way in which its activities are managed or organised fails to ensure the health and safety of persons employed in or affected by those activities.’
This offence has advantages and disadvantages.

Advantages

• separates out the test which determines the guilt of the company from that of the individual;
• allows the jury to assess the adequacy of an organisation’s management systems in determining its guilt;
• makes it easier to prosecute an organisation for a homicide offence;
• would mean that large companies with very poor systems of safety will no longer escape prosecution simply because it is difficult to find a director who can be prosecuted.

Disadvantages

• it could act as a disincentive to the Police and the CPS to investigate and prosecute the conduct of individual directors since it would now be easier to prosecute just the company;
• the only sentence available would be a cash fine imposed upon the guilty organisation;
• the Government is proposing not to apply the new offence to ‘crown bodies’ or to British companies that commit the offence abroad.
  
  To read more about the proposed reforms to the offence of manslaughter, click here

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Details of Manslaughter Prosecutions against Company Directors and Business Owners

• ongoing prosecutions
• convictions
• acquittals
  Please click here

Workers who have died between February to May 2002 Click here for details

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To subscribe to the printed version of Corporate Crime Update, please contact the Centre on 0207 490 4494 and we will send you a form. The Newsletter is published four times a year.

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