Corporate manslaughter
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 (CMA) 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.
Please note that the provisions in the Act which relate to publicity and the management of deaths which occur in custody will be phased in later (see sections below).
Where any of the conduct or events alleged to constitute the offence occurred before 6 April, 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.
Individuals will not be able to bring a private prosecution for the new offence without the consent of the DPP. This is unlike the position with allegations of gross negligence manslaughter against individuals where no such consent is required.
The new 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.
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 (s. 1(6)).
Section 18 states that an individual cannot be indicted for aiding, abetting, counselling or procuring the commission of this offence.
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; and
- 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 Court 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 level.
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 ss 3- 6 Companies Act 2006) It includes other organisations such as a local authority (s.2(3) Local Government Act 1972) and NHS Trusts (s.5(5) National Health Service and Community Care Act 1990) which have been incorporated.
Departments
Crown immunity has been a long established legal doctrine that means that Crown bodies (such as Government departments) cannot 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.
These are listed in schedule 1 of the Act.
Police forces, Constabularies and Services
Subject to certain exemptions (see "Exemptions" 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 that is indicted, however if there is a prosecution for HSWA, it is the Chief Constable as a corporation sole (section 51A HSWA 1974 as amended by section 158 Serious Organised Crime and Police Act 2005).
Partnership, trade union or employers association, if employers
Historically it has not been possible to prosecute an unincorporated association, such as a partnership, which has no legal personality.
A partnership can now be prosecuted in the name of the partnership only and any fine is payable out of the funds held in the partnership name and not the individual partners - s.14. This does not prevent an individual partner also being prosecuted at common law. A limited liability partnership however is a body corporate see s. 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.
Corporate identity
As with prosecutions against companies at present, organisations will be represented by their lawyers in court. The individual directors, managers and other employees may be called as witnesses.
Subsidiary organisations
Companies that operate using a group structure are all separate legal entities for the purpose of the Act. They are therefore individually subject to the offence. Careful consideration must therefore be made to whether the organisation is a distinct legal entity or a satellite or sub office to the parent organisation.
Where a company is registered abroad and is operating through a 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 new 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 in the first instance on whether they owed a relevant duty of care to the victim. The Act does not impose new duties of care but the new 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.
Foreign companies
The new offence applies to companies and other corporate bodies operating in the UK, whether they are incorporated in the UK or abroad.
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.
Causation
The Act does not define causation but as the intention was to follow aspects of the law on gross negligence, it must be assumed that the test is as set out in:
R v HM Coroner for Inner London, ex parte Douglas-Williams (1999) 1 All ER 344.
Lord Woolf:
"For gross negligence manslaughter so far as the facts we are considering are concerned there must be:
- negligence consisting of an act or failure to act;
- that negligence must have caused the death in the sense that it more than minimally, negligibly or trivially contributed to the death; and
- the degree of negligence has to be such that it can be characterised as gross in the sense that it was of an order that merits criminal sanctions rather than a duty merely to compensate the victim.
In relation to both types of manslaughter it is an essential ingredient that the unlawful or negligent act must have caused the death at least in the manner described. If there is a situation where, on examination of the evidence, it cannot be said that the death in question was caused by an act which was unlawful or negligent as I have described, then a critical link in the chain of causation is not established. That being so, a verdict of unlawful killing would not be appropriate and should not be left to the jury."
It will not be necessary for the management failure to have been the sole cause of death. The prosecution will, need to show that "but for" the management failure (including the substantial element attributable to senior management), the death would not have occurred. The law does not, however, recognise very remote causes, and in some circumstances the existence of an intervening event may mean that the management failure is not considered to have caused the death.
Relevant duty of care
IMPORTANT NOTE sections 2(1)(d) and 2(2) are not in force and are unlikely to be brought in for several years.
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.
For example, in the case of the duty owed by an occupier, duties are now owed under the Occupiers' Liability Acts 1957 and 1984 and the Defective Premises Act 1972 although the common law continues to define by whom and to whom the duty is owed.
Section 2(4) makes provision for the offence to apply in these circumstances too. Subsection (6), also makes it clear that 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 eg 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 and roads - s.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.
It will be for the trial judge to determine whether the organisation owed the deceased a duty of care (s. 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' - s.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 HSE 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 CMA (see exemptions below) provide that the offence does not apply to the performance of specified public functions.
Duties owed by company directors
It is the company which owes the duty of care and it is not a necessary inference that the director, because of his role, therefore owes a similar duty to others who may be affected by the actions/omissions of the company.
In Huckerby v Elliott (1970) 1 All ER 189 Ashworth J addressed the argument that there was a duty on a director to see that the law was observed.
'For my part I do not accept that as a right contention at all. It seems to me that in effect to express the duty in that way is to make it absolute and s. 305(3) does not quite plainly create an absolute offence involving all the directors of a company and deeming them to be guilty of what the company itself has committed...'. (In other words whereas the concept of the 'controlling mind' meant that the actions of the director were those of the company, the reverse is not necessarily true).
In the same case Lord Parker CJ said:
'it is perfectly proper for a director to leave matters to another director or to an official of the company, and that he is under no obligation to test the accuracy of anything that he is told by such a person, or even to make sure that he is complying with the law.'
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 s. 1(4)(b).
Section 8, sets out factors for the jury which must consider whether health and safety legislation was breached then if so:
- how serious the breach was (s. 8(2)(a);
- how much of a risk of death it posed (s. 8(2)(b).
Note that the breach which causes the death must be directly attributable to the senior management failure.
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 'Legislating the Criminal Code: Involuntary Manslaughter (LC 237)' p100. 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 s. 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 organization are prosecuted for manslaughter where different directions will need to be given. It will be especially so for coroners.
Other non-causative breaches might be admissible under s. 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.
Therefore internal guidance does not apply as the organisation is not an 'enforcement authority.
Section 8(4) provides a 'catch-all' provision by stating the jury may consider "any other matters they consider relevant."
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.
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. This covers both those in the direct chain of management as well as those in, for example, strategic or regulatory compliance roles.
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.
Whether the activity in question is itself a 'substantial' part of the company's activities will be of great importance in determining if the offence applies, especially where a company has either multiple work strands or is a national organisation with regional managers. Note here that 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.
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.
Jurisdiction
The Act sets out specific rules for the jurisdiction of the new offence - that is to determine whether a death in a particular place will fall under the new offence. These are explained in the section on "Jurisdiction".
A British company cannot be prosecuted for deaths abroad unless the harm occurs in this country.
Prosecution
Section 33 Criminal Justice Act 1925 and Schedule 3 Magistrates' Courts Act 1980 applies to any organisation charged under this Act - s. 15. This means that any plea must be in writing. As the offence is indictable only, (s. 1(6)), the provisions of paragraph 1 Schedule 3 (form of certificate of committal) do not apply.
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 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. A recent example in which the courts declined to find a duty of care on this basis related to whether the Department of Health owed a duty of care to issue interim advice about the safety of a particular drug.
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. The 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 response of -
- 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);
- 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.
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 s. (2)(a) gives one of the aims of the service as 'the protection of the public.')
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 crew have no duty of care until they 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 they 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.
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 HSE, local authority or other regulatory authority. It is important that the knowledge and expertise of the regulatory enforcing authorities - such as the Health and Safety Executive, the Office of Rail Regulation, Food Standards Agency and local authorities - are properly harnessed in any corporate manslaughter investigation, and protocols currently exist to facilitate this.
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 new 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. A copy of the Protocol can be obtained from the Health and Safety Executive website.
When police investigate they should consider the possibility of a prosecution for Corporate Manslaughter under the CMA 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 police have powers of arrest and 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.
Legal action options
If the decision is not to prosecute 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. With regard to a successful prosecution under the HSWA, there is in the Crown Court an unlimited fine both for the company, and any individual found guilty of a HSWA offence.
The HSE does not provide a family liaison function. However, they and other regulatory bodies seek to follow the Code of Practice as far as possible when dealing with cases of work-related death that are not pursued by the police as manslaughter investigations. Further information about HSE's policy towards victims can be found on the HSE website.
The Code of Practice and information about family impact statements, as well as further information for victims of crime, can be found on the cjsonline website. Guidance on the Victim Focus Scheme can be found on the CPS infonet.
Companies and fatal road traffic accidents
Fatal road accidents involving road haulage or transport companies cause much public anxiety. In such cases you should apply the principles in relation to the CMA when considering both who, and what, to charge. The House of Lords confirmed in R v Adomoko that involuntary gross negligence manslaughter includes 'motor manslaughter' but as section 1 Road Traffic Act specifically covers causing death by dangerous driving, unless the car has been used as a weapon (in which event the charge would be unlawful act manslaughter or, if the necessary intent can be proved, murder), the charge against the individual driver should usually be one under the Road Traffic Act legislation.
Where death has resulted from a road traffic accident caused by a defective vehicle you may need to consider whether the company, is responsible under corporate manslaughter for any lack of maintenance of the vehicle concerned.
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.
Work-Related Deaths - Protocol for Liaison
A Protocol entitled 'Work-Related Deaths: A Protocol for Liaison' has been agreed between the HSE, Association of Chief Police Officers (ACPO) and the CPS setting out the principles for effective liaison in such circumstances. See Homicide, elsewhere in this guidance.
The principles underlying that document 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; and
- the HSE 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, will take into account the criteria contained in 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 this guidance.
The following points contained in the Protocol should be noted:
- the police must consult the CPS when consideration is being given to charging a company with corporate manslaughter;
- where the CPS decide not to prosecute for any offence the HSE must be informed as soon as possible and the announcement of any such decision in the media should be co-ordinated with the HSE;
- where the CPS does decide to prosecute, we will keep the HSE advised of the progress of the case and notify them of the result;
- in the event of a CPS prosecution following a work-related death the HSE 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; and
- if both CPS and HSE decide to prosecute for offences arising out of the same incident a conference should be convened to discuss the management of the case with a view to initiating joint proceedings. Decisions must then be made as to who will take lead responsibility for the prosecution, the wording and nature of the charges, the retention and disclosure of material, and other associated matters.
Health and Safety at Work Act 1974
Section 2(1)
'It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health and safety at work of all his employees.'
This includes the maintenance of plant, systems of work, training, supervision, access and egress so that the work environment is 'safe and without risks to health'.
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 s. 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. Reg 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 4
Refers to the general duties of persons concerned with premises to persons other than employees - access to entry and egress.
Section 6
Sets out the general duties of manufacturers regarding safety of equipment including fairground equipment.
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 of the employee. Thus they will not prosecute an individual where the employee's actions can be attributed to a systems error by the employer.
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 level to qualify see R v Boal (1992) 3 All ER 177.
- For the meaning of neglect in the context of s.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. Note that this does not have an equivalent in the Corporate Manslaughter Act).
- This offence 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 s.2 or s.3 and the directors will be guilty under this section.
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).
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 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.
The prosecution should prepare and serve a schedule of the aggravating features and if the defence intend pleading guilty, they should prepare one 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 (degree of risk, extent, duration of breach, company's resources and effect of fine on company. Aggravating factors are failure to heed warnings, deliberate financial profit from a failure to take health and safety steps or running a risk to save money).
Note the protocol for liaison 'Work-Related Deaths' between HSE, ACPO, BTP, LGA and CPS revised in 2003 and available on the HSE website.
HSE prosecution policy
The Health and Safety Commission's Enforcement Policy Statement. Paragraph 39 states as follows:
"Subject to the above, HSC expects that, in the public interest, enforcing authorities should normally prosecute, or recommend prosecution, where, following an investigation or other regulatory contact, one or more of the following circumstances apply. Where:
- death was a result of a breach of the legislation;
- the gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender warrants it;
- there has been reckless disregard of health and safety requirements;
- there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance;
- there has been a failure to comply with an improvement or prohibition notice; or there has been a repetition of a breach that was subject to a formal caution.
Health and safety sentencing guidelines regard death resulting from a criminal act as an aggravating feature of the offence. If there is sufficient evidence, HSC considers that normally such cases should be brought before the court. However, there will be occasions where the public interest does not require a prosecution, depending on the nature of the breach and the surrounding circumstances of the death.
In addition the Health and Safety Executive has issued an Operational Circular: OC 130/8, which where relevant states as follows:
"The role of directors, managers, employees and other individuals should be considered in our criminal investigations, and, in deciding whether to prosecute individuals, you must be satisfied that the evidence provides a "realistic prospect of conviction" (the evidential test). If it does then you should consider whether a prosecution is in the public interest, applying the Commission's EPS and the Code for Crown Prosecutors".
Prosecutors need to consider both whether we can prosecute, and whether we ought to prosecute. The questions are "is there enough evidence to provide a 'realistic prospect of conviction'?" (The Evidential Test) and "would prosecution meet the principles of the EPS and be in the public interest?" (The Public Interest Test).
In general, prosecuting individuals will be warranted where there are substantial failings by them, such as where they have shown wilful or reckless disregard for health and safety requirements, or there has been a deliberate act or omission that seriously imperilled their health/safety or the health/safety of others.
A body corporate operates only by and through the actions of its employees and officers (including directors and managers). If a body corporate commits an offence then there is likely also to be some personal failures by directors, managers or employees. This does not mean we always prosecute individuals. The CPS Code for Crown Prosecutors, like the Commission's policy, makes clear that not all offences should be prosecuted. The public interest test, as well as the evidential test, should be considered.
Section 7: Employees - The Public Interest Test
As well as being able to prove a case you need to decide whether a prosecution ought to be taken. Where the employer appears primarily responsible for the circumstances causing you to consider enforcement then action would normally be taken against the employer only.
For section 7 offences you should consider:
- whether the company had done all it reasonably could to ensure compliance;
- whether the offence was solely the result of the actions/inactions of the individual;
- whether employees, as a matter of general practice, followed the systems of work alleged by the employer to be in force;
- any previous warnings to the employee, from whatever source;
- whether the offence by the employee was flagrant, the risks to health and safety arising from the offence by the employee; and
- whether prosecution would be seen by others as fair, appropriate and warranted.
In some cases you may need to consider if the company had done all it could and the offence resulted solely from the actions/inactions of an individual or whether, notwithstanding individuals' actions, the company was culpable. You will be deciding whether action should be against the company or the individual.
When appropriate you should not hesitate to take action under Section 7 against managers and supervisors who are not directors/managers subject to Section 37. Each case should be considered on its merits. You should bear in mind though that lower level managers are closer to the day-to-day activities of a company and you may therefore find it easier to obtain evidence against them. Where the principal failings were at a higher level then, in accordance with the principles in the EPS your enforcement action should be targeted at that higher level, notwithstanding any comparative difficulty in obtaining evidence. Beyond that, if the principal failings were at corporate level and the control of the risk was, (without individual allocation), in the hands of a number of managers, then your action would probably be best directed at the body corporate.
In general we are most likely to prosecute employees where they have shown a reckless or flagrant disregard for health and safety, and such disregard has resulted in serious risk.
- Note that under s.19 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 H&S, it is unlikely that the defence will plead guilty to HSWA unless the prosecution agree not to pursue the corporate manslaughter charge).
Sentencing
115.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. This will be commenced at a later date when sentencing guidelines are available (expected in autumn 2008). Courts may also require an organisation to take steps to address the failures behind the death (a remedial order).
Fines
- There is no upper limit to the amount of the fine. The Sentencing Guidelines Council is currently working on a guideline to support the new offence. A final guideline is expected to be in place by the autumn of 2008.
- The fine should 'reflect public disquiet at the unnecessary loss of life' - R v Howe & Sons (Engineers) Ltd (1999) 2 All ER 249.
- As the Sentencing Advisory Panel has suggested that a conviction under CMA should result in a fine significantly greater than under HSWA and should have a starting point of 5% of annual turnover, be alert to a possible reference to the Attorney on an unduly lenient sentence.
- Generally, fines need to reflect the relative size of the offender and the scale of the offending. The courts have shown an increasing willingness to hand down very severe penalties in very serious cases.
Remedial orders
- The court can set a remedial order, requiring the organisation to address the cause of the fatal injury. These are not currently available for organisations convicted of manslaughter, although they can be imposed under health and safety legislation.
- On conviction the court may order a remedial order (which is not limited to the causative breach - s. 9(1)(c));
- but only on the application of the prosecutor specifying the terms of the proposed order- s. 9(2); and
- the prosecutor must first consult the relevant enforcement authority - s. 9(3) (this is to ensure that the remedial order is appropriate).
This power already exists under section 42 HSWA. Prosecutors should consult the relevant regulatory authority as to which standards are appropriate. Cases such as this will generally be dealt with in consultation with any relevant regulator. 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 Ministry of Justice Guidance suggests that "the courts will impose a remedial order in relatively rare circumstances since the relevant regulator will have been involved in the case from the outset and will have been able to use their existing enforcement powers to address any dangerous practices long before a case comes to court. Nevertheless, this power enables the judge to impose an order if it still appears necessary."
- 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 is arguably the best placed to assess the detail of a claim for damages.
Publicity orders
Section 10 is currently not in force (not available under HSWA) On conviction the court may make a publicity order and if contemplating such an order must ascertain the views of the appropriate enforcement authority and any representations made by the prosecution or defence.
Note that if a company fails to comply with either a remedial or publicity order, it commits an offence punishable with a fine. (This power is not being brought into force on 6 April and it is unlikely to be in force until late 2008.)
Useful references
Homicide, elsewhere in this guidance
Work-Related Deaths: A Protocol for Liaison
Care and Treatment of victims and witnesses, elsewhere in this guidance
Counter Terrorism, Organised Crime & Special Crime Divisions - Criteria for referral, elsewhere in this guidance
Casework Bulletin 22/2001 - Offences committed by Companies, elsewhere in this guidance
Prosecuting cases of bad driving, elsewhere in this guidance
In conjunction with the Institute of Directors, HSC has published guidance for directors on their responsibilities for health and safety - entitled 'Leading health and safety at work: leadership actions for directors and board members' PDF
Corporate Manslaughter and Corporate Homicide Act 2007: guidance from the Ministry of Justice
R v Pittwood (1902) 19 TLR 37
H.M. Coroner for East Kent, ex p. Spooner (1987) 88 Cr.App.R. 10
R v Boal (1992) 3 All ER 177
Ancell & Others v McDermott & others (1993) 4 All ER 355
R v Board of Trustees of the Science Museum (1993) 1 WLR
R v Adomako (1994) 3 All ER 79
R v Associated Octel Co Ltd (1996) 1 WLR 1543
R v Nelson Group Services (Maintenance) Ltd (1999) 1 WLR 1527
R v DPP ex p Jones (Timothy) 2000 CLR 858
Attorney General's Reference no 2 of 1999 (2000) 2 Cr App R 207
R (Rowley) v DPP [2003] EWHC 693 (Admin)
R v Misra & Srivastava [2005] 1 Cr App R 328
R v Hatton Traffic Management Ltd (2006) EWCA Crim 1156
R v P Ltd & another [2007] EWCA Crim 1937
P & O European Ferries (Dover) Ltd, (1991) 93 Cr.App Rep.72
R.v. Kite and OLL Ltd, (the "Lyme Bay" case, Winchester Crown Court 8th December 1994, unreported
R.v. Jackson Transport (Ossett) Ltd.
R.v. Roy Bowles Transport Ltd., Central Criminal Court 10 December 1999, unreported
Tesco -v- Nattrass (1971) 2 All ER 127
R.v. Noel Martyn Loukes(1996) 1 Cr.App R 444
R.v. Millward (1994) Crim LR 527