Corporate Manslaughter: Death on Campus

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Corporate ManslaughterDeath on Campus?

• 24 October 2007

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A brief history of everything..

• Corporate manslaughter a live issue since at
  least mid 1980s
• The Cullen Report (Ladbroke Grove)
• HSE Code of Practice for Directors
  responsibilities on Health Safety
• Morecambe Bay/Barrow-in-Furness

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Corporate Manslaughter

• The offence
• To whom does it apply?
• The ingredients
• Alongside HS offences
• Penalties
• Risk areas

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The Offence

• If the way in which an organisations activities
  are managed or organised
• Amounts to a gross breach
• Of a relevant duty of care to a person, and
• Which causes that persons death

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Applies to who?

• Corporations
• Government departments
• Police force
• Partnerships
• Trade unions who employ staff

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The ingredients Duty of Care

• Duty owed in negligence
• Matter of law
• Judge decides if it exists
• Breach must result in fatality

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The ingredients Management of Activities

• Management failure must be a substantial element
  of the breach

No systems, no compliance
Medium systems, medium compliance
Good systems, good compliance
Substantial element of breach?
High risk of prosecution
Low risk of prosecution
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The ingredients Management of Activities

• Failure must be by senior management
• People who play significant roles in
• Making decisions about how whole or a substantial
  part of the activities are managed or organised
• Managing or organising the whole or a substantial
  part of those activities
• Difficult to define question of fact for jury

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The ingredients Management of Activities
?
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The ingredients gross breach

• Question of fact jury decides
• Considerations for jury
• Evidence of breach of HS legislation,
  seriousness of failure -v- risk of death
• Evidence of attitudes, systems and policies
  encouragement/tolerance or behaviour culture.
• HS guidance (ACoPs, BS)
• Anything else considered relevant

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The ingredients gross breach

• Considerations for jury any other HS offences
• What if facing HS prosecution as well?
• Early guilty plea to HS offence can help to
  mitigate level of fine,
• BUT
• If plead guilty, jury will consider this.
• Increased risk of conviction of corporate
  manslaughter.

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Penalties

• Unlimited fine
• Remedial Order
• To correct the things which constituted the
  failing
• To specify time and steps for compliance
• Unlimited fine for failure to comply

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Penalties

• Publicity Order
• Organisation required to publicise
• The fact it has been convicted
• The particulars of the offence
• The amount of the fine
• The terms of any Remedial Order
• Unlimited fine for failure to comply

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Higher and Further EducationThe key risk areas

• Work placements
• Field trips
• The state of the estate
• Youthful exuberance

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Checklist How exposed is your institution to a
prosecution?

• Lack of top level commitment
• Perception that health and safety is down to
  employees
• Health and safety not seen as an integral part of
  what you do
• An irresponsible approach to health and safety
• A laissez-faire, complacent culture

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Checklist How exposed is your institution to a
prosecution?

• Out of date policies and procedures
• Inappropriate policies and procedures
• Insufficient resources allocated
• Decision based solely on financial considerations
• Too much emphasis on roles further down the
  management chain

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• Smita Jamdar
• Partner
• Education Team
• T 44(0)870 763 1332
• E smita.jamdar_at_martjohn.com

• Nicola Cárdenas-Blanco
• Solicitor
• Commercial Disputes Team
• T 44(0)870 763 1328
• E nicola.cardenas-blanco_at_martjohn.com