What is Corporate Manslaughter?
Under the Corporate Manslaughter and Corporate Homicide Act 2007 (the CMCHA), an organisation is guilty of an offence if the way in which its activities are managed or organised causes a death and amounts to a breach of a relevant duty of care to the deceased.
The Law before the CMCHA
Before the enactment of the CMCHA, it was possible for organisations to be prosecuted for the offence of Gross Negligence Manslaughter.
In order for the organisation to be guilty of the offence, however, it was necessary for a senior individual (known as the ‘controlling mind’) to also be personally guilty of the offence.
This was known as the ‘identification’ principle.
Prosecutions for these types of offences were relatively rare, not least because of the difficulty in ‘identifying’ senior individuals to attribute liability.
The effect of the CMCHA
The effect of the CMCHA was to widen the scope of liability for organisations.
The offence now creates a broader means of accountability for serious management failings across the organisation.
Who is covered by the Offence?
Unlike Gross Negligence Manslaughter, the offence is concerned with ‘corporate’ liability of the organisation itself and does not apply to individual directors, senior managers or other individuals.
There is a note of caution to all individual directors and senior managers, however, and that is they may still face prosecution for Gross Negligence Manslaughter and other Health and Safety offences.
What are the Elements of the Offence?
In order for the offence to be made, there are a number of elements that must be proved, which include:
- The defendant is a qualifying organisation
- The organisation causes a person’s death
- There was a relevant duty of care owed by the organisation to the deceased
- There was a gross breach of that duty
- A substantial element of that breach was in the way those activities were managed or organised by senior management; and
- The defendant does not fall within one of the exemptions for prosecution
The Qualifying Organisation
The CMCHA provides a list of qualifying organisations and these include:
- Government Departments, Local Authorities and the NHS
- Police Forces
- Trade Unions and Employers Associations
Causation is not defined in the CMCHA but it is clear that the intention was to mirror its established principle under the common law offence of Gross Negligence Manslaughter.
In essence, therefore, the breach will need to be more than a minimal contribution to the death.
Duty of Care
The CMCHA expressly provides that the relevant duty of care is to be the same as the one that is owed under the general law of negligence and the duty must be a relevant one for the offence and include:
- Employer and Occupier duties
- Duties connected to the supply of goods and services, construction and maintenance, activities on a commercial basis, the using or keeping of plant and vehicles.
- Duties relating to holding a person in custody
What is a Gross Breach? | Health & Safety Solicitors
The breach must fall far below what could reasonably be expected of the organisation in the circumstances.
The essential factor is that the breach that causes the death must be directly attributable to the senior management failure.
Unlike the general principle of negligence, foreseeability of risk is not in the definition of the offence because an organisation does not have the capacity to foresee risk.
It is also open to a jury to consider the attitudes, policies, systems or accepted practices that were likely to have encouraged the breach.
Senior Management | Health & Safety Executive Cases
Senior Management is defined in the CMCHA as ‘those persons who play a significant role in the management of the whole, or a substantial part of the organisations activities’.
Neither significant nor substantial are defined in the Act but ‘significant’ would appear to be limited to those whose involvement is influential rather than employees who are simply carrying out the activity.
The test of senior management is much wider than the former ‘controlling mind’ which effectively restricted the offence to the actions of directors.
Sentencing | Solicitors Defending Health & Safety Cases
There are a number of penalties for which an organisation guilty of Corporate Manslaughter may be liable to and include:
- Unlimited Fine
- Publicity Order
- Remedial Order
There are sentencing guidelines for organisations found guilty of Corporate Manslaughter.
The guidelines set out an extensive list of factors that are likely to affect the seriousness of the offence which ultimately will influence the level of fine and type of Order the Court is likely to impose against the organisation.
Fines need to reflect the size of the organisation and the scale of offending and the Courts have shown an increasing willingness to hand down very severe penalties in very serious cases.
How Kangs Solicitors Regulatory Department Can Help?
A charge of Corporate Manslaughter is one of the most serious offences an organisation can face.
Although individuals within the organisation cannot be prosecuted individually for this offence, the prosecuting authorities are not prevented from bringing prosecutions against individuals for other breaches of common law offences and those under the health and safety regime.
It is important, therefore, to obtain specialist legal advice at the earliest opportunity.
This area of law can be very complex and Kangs Solicitors have a number of specialist Regulatory lawyers who have a proven track record in dealing with cases of Corporate Manslaughter and other serious Health and Safety offences.
We have a vast amount of experience in defending cases brought not only by the Crown Prosecution Service but also the Health and Safety Executive.
Who Can I Speak to? | Kangs Solicitors
Please feel free to contact our team of lawyers with a proven track-record in defending Health & Safety cases through one of the following: