Gary Summer discusses future UK legislation on corporate manslaughter

The term corporate manslaughter is used to describe the calling to account by the criminal law of a company for a death caused by the acts or omissions of persons engaging in work on its behalf.

In the current climate of corporate accountability, such a death can have serious consequences for a company's reputation and standing, and may have a negative effect when tendering for contracts or maintaining insurance. Internally it can have a significant and sustained impact on employee relations.

Present perceptions

There is a general perception that the history of failed corporate manslaughter prosecutions arising from major transport disasters, such as the Herald of Free Enterprise tragedy and the rail crashes at Southall, Ladbroke Grove and Hatfield, has been lamentable.

Since 1992 there have been 34 prosecutions for work-related corporate manslaughter, and only six smaller companies have been convicted.

This failure stems from deficiencies in the common law framework, an area of criminal law termed 'gross negligence manslaughter,' coupled with the mechanisms by which the law holds a company criminally responsible.

Present law

The present law is set out in the House of Lords case of Adomako in 1994. The test the jury need to consider is whether 'the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him ... was such that it should be judged criminal'.

In order to convict a human defendant, the jury have to be satisfied to the criminal standard that the human defendant:

- owed a duty of care to the deceased
- was in breach of that duty by act or omission
- that the breach of duty was a substantial cause of the death
- that the breach was so grossly negligent that it deserves criminal sanctions.

Corporate criminal responsibility

A company, being a fictional person, cannot be imprisoned. The law had to be adapted to apply to companies, and this was achieved by the development of the 'doctrine of identification'. In this, criminal liability is based on establishing the guilt of a controlling or directing mind: namely a senior individual at the top of the company who embodies the organisation. A company cannot be convicted of corporate manslaughter unless this individual is personally guilty of manslaughter. The result has been the creation of a two tier system of justice, depending on the size of the business undertaking.

In smaller companies, where it is easier to identify a senior manager with a directing mind, prosecutions have resulted in convictions. But, in large organisations with complex management structures, the doctrine of identification has been harder to apply, as it has been difficult to identify a single controlling or directing mind at senior level that can be held to be grossly negligent and the cause of the events which led to death. A more common scenario is the aggregate failings of several individuals, coupled with corporate failures, which have collectively caused death.

Corporate Manslaughter Bill 2005

In March 2005, the Government introduced a draft Corporate Manslaughter Bill, with a short consultation period expiring in mid June 2005. On November 22, the Home Office Minister Fiona Mactaggart signalled the Government's intention to implement the provisions by the end of the Parliamentary session 2005/6.

The bill focuses on changing the basis of criminal liability for companies. Despite pressure from trade unions to make the bill apply to board members and senior managers rather than companies, individual liability for human defendants is neither increased or decreased. So, where a person is directly to blame for a death, prosecution on an individual basis remains possible. The difference is that the liability of the company for the new offence does not require an individual to be guilty of particular conduct.

The new offence is heavily based on the existing law of gross negligence manslaughter and requires a gross breach of a duty of care. Under Clause 1 of the proposals, a company commits the offence of corporate manslaughter (punishable by an unlimited fine) 'if the way in which any of the organisation's activities are managed or organised by senior managers: (a) causes a person's death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased'.

Under Clause 2, a senior manager is one who 'plays a significant role in: (a) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised, or (b) the actual managing or organising the whole or a substantial part of those activities'.

Under Clause 4, the relevant duty of care roughly equates to the existing common law of negligence and other statutory provisions imposing an equivalent duty of care.

One of the key definitions is the meaning of 'gross breach'. This is presently undefined under the common law. In Clause 3, this expression means failure which 'constitutes conduct falling far below what can reasonably be expected of the organisation in the circumstances'. The jury 'must consider' whether the company failed to comply with relevant health and safety legislation and guidance and, if so, whether senior managers knew, or ought to have known this, or were aware, or ought to have been aware, of the risk of death or serious harm that was posed, and/or sought to cause the company to profit from that failure. This list is not exhaustive, and the jury are not precluded from taking account of any other relevant matter.

Other features of the legislation are:

- the inclusion of Crown bodies (with exemptions) and parent companies

- consent of the DPP is required before proceedings can be instituted, making private prosecutions unlikely (Clause 1)

- a reparation remedy is available to the court on conviction for the gross breach, and any matter resulting from it which contributed to the death

- the injury which causes death must come within the jurisdiction of England and Wales.

The bill thus provides a framework for the assessment of criminal responsibility, linked to the existing H&SAW legal infrastructure. It focuses on management failings by a corporation's senior managers, either individually or collectively and on arrangements or practices for carrying out the organisation's work, as opposed to an individual's negligence.

In real terms, the bar for corporate manslaughter under the new bill seems to be set at comparatively low level. The umbilical link to relevant health and safety legislation may be highly significant in practice. Once it is established that H&SAWA breaches may have contributed to the death, the prosecuting authorities may leave it to the jury to decide whether the 'gross negligence' standard was reached.

Plainly the stakes are very high. This is a bill whose message must be listened to: after all, which company wants to be labelled a killer?

Gary Summers is a white collar barrister at Seven Bedford Row, Tel: 0207 242 3555.