Dead reckoning

first_imgTheLaw Commission has recommended creating a new offence of corporatemanslaughter. What are the implications for companies? By Gillian HowardTherehave been a number of disasters in recent years, which have provoked demandsfrom Government and the public for the use in law of corporate manslaughter.However, failures to prosecute successfully for this crime have led to aperception among the public that the current law dealing with corporatemanslaughter is inadequate. Suggestionsthat the British Transport Police were considering bringing charges ofcorporate manslaughter after the Hatfield rail disaster against individualmembers of the senior management at Railtrack and Balfour Beatty – the firmthat carried out the maintenance at Hatfield – have failed to materialise.Theperception that there is a serious lacuna in the law has been heightenedbecause the disasters have been followed by inquiries that have found corporatebodies at fault, meriting very serious criticism. In some instances there havebeen successful prosecutions for offences under the Health and Safety at WorkAct 1974.  Newproposals from the Home Office and the Law Commission include the Government’sintention to amend Section 1 of the above Health and Safety at Work Act. Thismakes it clear that one of their purposes is to prosecute offences of corporatekilling and to promote a new statute creating a new offence of corporatemanslaughter.CurrentlawThegoverning principle in English law on the criminal liability of companies isthat those who control or manage the affairs of the company are regarded asembodying the company itself. Thus in R v British Steel, 1995, IRLR 310, theCourt of Appeal held that the company could be successfully prosecuted underthe Health and Safety at Work Act 1974 for the unlawful death of a contractordespite its arguments that at “the directing mind” level, the companyhad taken reasonable care to delegate the supervision of the particularoperation to a responsible and competent person.Butbefore a company can be convicted of manslaughter, an individual who can be”identified as the embodiment of the company itself” must first beshown himself to have been guilty of manslaughter. Only if the individual whois the embodiment of the company is found guilty can the company be convicted.Where there is insufficient evidence to convict the individual, any prosecutionof the company must fail. Therecan often be great difficulty in identifying an individual who is theembodiment of the company and who is culpable. The problem becomes greater withlarger companies where overall responsibility for safety matters can beunclear. In such circumstances it may be impossible to identify specificindividuals who may be properly regarded as representing the directing mind ofthe company and who also possess the requisite mental state to be guilty ofman-slaughter. In such circumstances, no criminal liability can be attributedto the company itself. LawCommission proposalsTheLaw Commission, looking into the possible reform of the law on manslaughter,has recommended that:–There should be a special offence of corporate killing, broadly correspondingto the proposed offence of killing by gross carelessness. –The corporate offence should (like the individual offence) be committed onlywhere the corporation’s conduct in causing death fell far below what couldreasonably be expected. –The corporate offence should not (unlike the individual offence) require thatthe 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 thecorporation if it is caused by a “management failure”, so that theway in which its activities are managed or organised fails to ensure the healthand safety of persons employed in or affected by its activities. Such a failurewill be regarded as a cause of a person’s death even if the immediate cause isthe act or omission of an individual. –Individuals within a company could still be liable for the offences of recklesskilling and killing by gross carelessness. Whowould investigate and prosecute the new offence? TheHome Office view is that the Health and Safety Executive and other prosecutingauthorities such as the police and the Criminal Prosecution Service shouldeach, where appropriate, play their part in investigating and prosecutingcorporate killing charges.Whowould be prosecuted?TheGovernment is still seeking views as to whether it would be appropriate toprosecute individual officers for corporate killing and whether or not theyshould be subject to terms of imprisonment. However, the Government is verykeen to ensure that under any new legislation, individuals who are shown tohave had some influence on or responsibility for the circumstances in which themanagement failure – falling far below what could reasonably be expected – wasthe cause of a person’s death, should at the very least be subject todisqualification from acting in any management role in any undertaking carryingon a business in Great Britain.Twospecific offences are being suggested – that of “reckless killing”and that of “killing by gross carelessness”. The former would involvethe offender being aware that his action involves the risk of causing death andhere there would be a maximum penalty of life imprisonment. The latter offencewould apply where the risk would have been obvious to a “reasonableperson” and their conduct fell “far below what reasonably could beexpected”.Thesetwo offences would apply equally to work-related deaths from accidents as wellas from occupational illnesses.Thereis an obvious need for law reform in this area. In a reported case – R vDirector of Public Prosecutions and others ex parte Timothy Jones, 2000 – theDPP decision not to prosecute a company and its managing director was quashedon judicial review. The DPP was ordered by the High Court to reconsider hisdecision because he had ignored relevant considerations such as whether thesystem of using the grab bucket and crane contrary to the manufacturer’sinstructions was “reckless” and whether the system of work whichdecapitated a contractor on his first day at work was “safe”. The DPPwas also found to have wrongly applied a subjective test when consideringwhether a conviction was possible.Andin the Attorney General’s reference No 2/1999, 15 February 2000, the Court ofAppeal Criminal Division was asked to give its opinion on two questions:–Can a defendant be properly convicted of manslaughter by gross negligence inthe absence of evidence as to the defendant’s state of mind? –Can a non-human defendant be convicted of the crime of manslaughter by grossnegligence in the absence of evidence establishing the guilt of an identifiedhuman individual for the same crime?Thesequestions arose out of Mr Justice Scott Baker’s decision concerning theSouthall Rail crash that it is a condition precedent to a conviction formanslaughter by gross negligence for a guilty mind to be proved and that wherea non-human defendant is prosecuted, it may only be convicted via the guilt ofa human being with whom it is identified.TheirLordships answered “No” to both questions and refused to overrule MrJustice Scott Baker’s decision. Their Lordships referred to the LawCommission’s proposed legislation and made it clear that until a new statutoryoffence was created by Parliament, it was not for the courts to overturnestablished precedent.Thismade it clear that the identification concept was paramount and that in eachcase it was essential to identify an employee whose conduct could be held to bethat of the company.Inother words not only must a death or serious injury occur but it has to beestablished that one or more persons within the company knew there was such arisk 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 vAdomako – the House of Lords had to consider whether an anaesthetist shouldhave been convicted of manslaughter where the oxygen supply to a patientundergoing an eye operation was cut off and where he failed to check theconnection until after the resuscitation procedures had been started.Hisappeal was rejected and the House of Lords held that a jury must considerwhether the breach of duty should be characterised as “grossnegligence” and therefore “as a crime”. GillianHoward, Hon FFOM, is an employment lawyer. Prosecutionsunder the Health and Safety at Work Act 1974TheHerald of Free Enterprise disaster 6 March 1987  The jury at the inquest returned verdicts of unlawful killing in187 cases and the Director of Public Prosecutions launched prosecutions againstseven individuals and the company. The case failed because the various acts ofnegligence could not be aggregated and attributed to any individual who was adirecting mind. TheKing’s Cross fire 18 November 1987 which claimed 31 live   London Underground was criticised for not guarding against theunpredictability of the fire and for no one person having overallresponsibility. TheClapham rail crash 12 December 1988 that caused 35 deaths and nearly 500injuries  British Rail wascriticised for allowing working practices that were “positivelydangerous” and it was said that the errors went much wider and higher inthe organisation than merely to be the responsibility of those working thatday. TheSouthall rail crash 19 September 1997 that resulted in seven deaths and 151injuries   In July 1999 Great Western Trains (GWT) pleaded guilty tocontravening Section 3(1) of the 1974 Act in that it failed to ensure that thepublic were not exposed to risks to its health and safety. They received arecord fine for a health and safety offence of £1.5m for what Mr Justice ScottBaker described as “a serious fault of senior management”. The judgehad earlier ruled that a charge of manslaughter could notsucceed because of theneed to identify some person whose gross negligence was that of GWT itself. Dead reckoningOn 1 Apr 2001 in Personnel Today Related posts:No related photos. Comments are closed. Previous Article Next Articlelast_img

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