The Corporate Manslaughter Act 2007

Transcription

1 The Corporate Manslaughter Act 2007 The Corporate Manslaughter and Corporate Homicide Act 2007 came into force in April Prior to this it had been hard to convict large companies of manslaughter. Prior to the Act The laws of manslaughter individuals The offence of individual manslaughter is a common law offence, which is an offence developed by judges and case law and not one which is contained in a legislative statute. The 1995 House of Lords case of Adomako sets out the current test to prove the common law offence. It states that an individual commits manslaughter when he causes a death through gross negligence, and a breach of a relevant duty of care towards the victim. Case law has held that a person can be found guilty of manslaughter even when they were unaware of the risks created by their conduct. However, any evidence of awareness may assist a jury in coming to a conclusion that a defendant is grossly negligent. Manslaughter by a company The test of whether a company was guilty or not of manslaughter, was linked to whether or not a director or senior manager of the company, who could be said to embody the company in his actions a controlling mind and will of the company was guilty of manslaughter. If the director / manager were found guilty, the company was found guilty; if the director / manager were found innocent, the company was found innocent. Page 1 of 6

2 This is known as the identification doctrine the company is identified through its controlling officers. In the trial of Great Western Trains over the Southall train disaster of 1997, the Crown argued that this doctrine no longer applied, and that it was possible to consider the conduct of the company as a whole rather than the conduct of an individual controlling mind. The trial judge did not agree with this, and the Court of Appeal upheld the decision, saying that the identification principle remains the only basis in common law for corporate liability for gross negligence manslaughter. The 2007 Act The 2007 Act removes the necessity under the old law to identify the controlling mind. It is based around evidence of a serious management failure, and not serious individual failures, and it concentrates on the way organisations activities are managed / organised. Under the Act, a company can be convicted if it can be proven that there was a gross breach of a relevant duty of care by senior management rather than just one individual. Existing health and safety offences and gross negligence manslaughter still apply to individuals. There are several key differences between the new statute and the old common law offence: Under the old common law offence, only companies could be prosecuted. The new law also applies to crown bodies, partnerships, and other organisations (as long as they employ staff). Page 2 of 6

3 There is now a single offence for the whole of the UK. Prior to the Act there were three separate offences under common law one for England and Wales, one for Scotland, and one for Northern Ireland. There is now a clear test assessing whether or not there has been gross negligence, the organisation s failure must fall far below what can reasonably be expected, and there are factors set out that a jury must take into account. Sentencing Under the old common law offence, the only penalty available was a fine. Under the Act, in addition to an unlimited fine, the court has the power to make a remedial order, which addresses the cause of the fatal injury. Companies may also have to publicise the fact of its conviction as well as other details of the offence under a publicity order. Whilst conviction should not result in a large or medium sized company being forced to shut down (except in the most extreme of cases), the penalty imposed must be very significant in its deterrent impact. Fines prior to the Act The 1997 Southall train disaster killed 7 people and injured 150. The driver of the train was originally charged with individual manslaughter, but charges were dropped in 1999 when it was proven that a warning system on the train was knowingly faulty. Great Western Trains were then charged with corporate manslaughter but these charges were also later dropped as no individual manager could be identified as having been guilty of reckless behaviour. They were charged under health and safety law, and fined 1.5m. Page 3 of 6

4 The HSE prosecuted Thames Trains over the Ladbroke Grove crash of The accident, just outside Paddington, west London, happened when a Thames Trains commuter service went through a red light and ploughed into a First Great Western express train. Thames trains pleaded guilty to 2 charges under the Health and Safety at Work Act 1974, and they were fined 2m for having an inadequately trained driver, who had only qualified 13 days before he died in the crash. Network rail were also fined 4m in 2007 for its part in the crash, after the court found it responsible for a catalogue of failures that resulted in 31 deaths and 400 injured. Utility firm Transco was fined a record 15m in 2005 after being convicted of a charge arising from an explosion blamed on a leaking gas main supply, which killed 4 people in their home in Larkhall in The case centred on maintenance, repairs and record keeping procedures after it was alleged Transco failed to keep accurate records of its pipelines. The firm was also found guilty of failing to ensure members of the public were not exposed to risks to their health and safety. 6 senior managers and 2 companies were charged over the Hatfield train crash which killed 4 and injured dozens more in October Network Rail, Balfour Beatty and the 6 managers were charged with gross negligence, manslaughter and offences under the Health and Safety at Work Act Network Rail was eventually fined 3.5m, and Balfour Beatty 10m (later reduced to 7.5m) under the Health and Safety at Work Act in Manslaughter charges against the 6 executives were thrown out, as were corporate manslaughter charges against the 2 companies. No reasons were given by the trial judge. Following the Hatfield ruling, union leaders said the decision exposed the gross inadequacy of the existing legislation, and vowed to keep the Government to a promise to make it easier for senior management to be held accountable. Page 4 of 6

5 The Ministry of Justice guide to the 2007 Act refers to all of these cases, and goes as far as saying that in appropriate cases, fines on this scale, and even higher, are the sort that we would expect to see in cases of corporate manslaughter. To date, there has been only one fine under the Act. In 2011, Gloucestershire firm Cotswold Geotechnical Holdings were fined 385,000 for corporate manslaughter when a worker was killed when a trench collapsed on him in September Shortfalls The following shortfalls have been identified, and they should all be taken into account in the event of future reform: For public bodies, prosecution can only take place in relation to its responsibilities as an employer, and not as a provider of services. If an employee dies, prosecution can take place; if a member of the public dies as a result of the provision of services, the public body cannot be prosecuted under this law. This is highlighted recently in the case of Ian Tomlinson, a 47 year old newspaper seller who collapsed and died at the G20 demonstrations in London on 1 st April 2009, moments after being struck with a baton and being pushed to the ground by a police officer. The officer will stand trial in the criminal court charged with individual manslaughter. Perhaps if the police force could have been prosecuted under the Act, any penalty could have served as a bigger deterrent. However, like the ruling pointed out when Balfour Beatty had their fine reduced in 2006, every pound spent on a fine is a pound not spent on frontline policing (or in the case of Balfour Beatty railway safety) Page 5 of 6

6 The Act only allows for the prosecution of an organisation, and individuals cannot be prosecuted for contributing to the event. The common law principles of manslaughter still apply to individuals (see above). If a public body cannot be prosecuted under the Act for a breach of duty of care to the public, another Hillsborough disaster would see the police force only prosecuted in the event of the death of a police officer, and not a member of the public. Parent companies can not be prosecuted for deaths arising from the acts of its subsidiary bodies, however serious the failure of the parent company. Only the CPS in England and Wales (and their equivalent in Scotland and Northern Ireland) can bring prosecutions under the offence. Individuals cannot bring private prosecutions. The lack of individual accountability is the real problem. No director or senior manager of a large or medium sized company has ever been convicted for either manslaughter or a health and safety offence. Also, if the courts do not impose very significant fines on convicted companies, then the Act in its present form will be pretty worthless. Page 6 of 6