What is corporate manslaughter?
The term made frequent news headlines in 2019 and may have left many responsible businesses and organisations keen to gain a better understanding of their obligations. If your business is looking to both reduce reputational risk and protect employee welfare, ORJ Solicitor’s insurance litigation department is here to help. Leading the department is Lesley White, who has provided this brief overview of the definition of corporate manslaughter and some of the key areas to be aware of.
Corporate manslaughter is an offence created by section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007. It is a criminal offence involving the death of an individual as a result of the actions of a company or organisation following a gross breach of their duty of care. It is one of four categories of involuntary Manslaughter under UK law. Manslaughter is defined as an act of homicide without premeditation, where death was caused recklessly but without intention.
The offence applies only to certain organisations as defined by the Act, including private bodies such as limited companies, companies limited by guarantee and limited liability partnerships. A partnership can be prosecuted, but only if it is an employer; the relevant duties of care are not limited to employees. The prosecution must be against the partnership as a body, not its individual members. The liability to pay the fine lies with the partnership only and not the personal assets of its members.
The offence of corporate manslaughter applies to all companies operating in the UK, whether they are incorporated in the UK or abroad. The determining factor is whether the harm resulting in death occurred with the UK.
Many companies operate through a group structure involving parent and subsidiary companies. More than one company within the group can be prosecuted for an offence if there are gross failings within each organisation which separately contributed to the death. An activity might involve several organisations working together in a chain; for example, a principal contractor and sub-contractors under a construction project. It is necessary to identify the division of responsibility.
Individuals cannot be prosecuted for the offence, whether as an accessory or otherwise. If there are personal failings, the appropriate charge is gross negligence manslaughter contrary to common law. The effect of the Act was to widen the scope of the offence so that the focus is now on the overall management of the organisation’s activities rather than the actions of particular individuals. Therefore it is no longer necessary to show that a person who was a senior individual who could be said to embody the company (the “controlling mind”) was personally responsible for the offence.
Under the Act, the offence relates to the very way in which the relevant activity was managed throughout the company. Overall management of health and safety, training and supervision of staff are some of the other factors that can be taken into account. Failings at a junior level do not give rise to liability under the Act; it is the failings of senior management that must have formed a substantial element although they do not of themselves have to amount to a gross breach of duty. Liability for the offence is assessed by looking at the failing of the organisation as a whole. Within the framework of the Act, it is possible for the failings of a number of individuals within the organisation to be aggregated.
The organisation must owe a relevant duty of care to the deceased, for example, the duty owed by an employer to its employees, as an occupier of premises or in connection with the supply of goods and services. There must be a gross breach of that duty by the organisation which must cause or contribute to the death. A gross breach is one where “the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances”.
The relevant breach must be a cause of death. It is not necessary for it to be the sole or main cause, but it must make more than a minimal contribution.
Since an organisation is an inanimate body, it does not have the capacity to foresee risk, and therefore it is not necessary to prove there was a serious and obvious risk of death; or that individuals were reckless to the safety of others. However, evidence of reckless conduct at senior management level would point strongly towards a gross breach.
Senior management is defined under the Act as “the persons who play significant roles in the making of decisions about how the whole or a substantial part of the organisation’s activities are to be managed or organised; or the actual managing or organising of the whole or a substantial part of those activities”. It is not limited to directors or their equivalent and includes executives and managers at the top of the organisation; it could encompass for example a regional manager provided the region constituted a substantial part of the activities of the organisation.
The assessment of what constitutes a gross breach relates to the failings of the organisation as a whole. The test is whether the failings made a substantial contribution.
In the case of small or micro companies, where the whole or a large part of the failing is the responsibility of one person (and their activity represents a large part of the company’s undertaking), a decision may be taken to charge the individual with gross negligence manslaughter rather than the corporate offence. In those circumstances, the company might be charged under health and safety legislation.
The Police will conduct an investigation where there is an indication the offence has occurred. The Health and Safety Executive will also conduct an investigation relating to possible offences under health and safety at work legislation. They will liaise with the Police. The decision to prosecute is taken by the CPS following consultation with the HSE. Where a charge of corporate manslaughter is brought, it is often appropriate for charges under section 2 and/or 3 Health and Safety at Work Act 1974 to be included.
Whether or not a prosecution for corporate manslaughter is brought, individual directors, managers or owners may be prosecuted separately.
If you have any questions or concerns about any points covered in this article, you can visit the HSE page on corporate manslaughter or speak to ORJ Solicitor’s Insurance, Health and Safety Director Lesley White:
Phone: 01785 223440