Corporate Manslaughter

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Corporate Manslaughter

• Professor Rudi Klein Barrister, Chief
  ExecutiveSpecialist Engineering Contractors
  Group

AUE 37th Annual ConferenceRoyal Holloway
University 26 July 2006
2
NEWS HEADLINE
Estates Department in dock on Manslaughter
charges
3
NEWS HEADLINE
University Estates Engineers knew the risks
Jury told
Legionnaires outbreak kills 200 in
4
NEWS HEADLINE
Jury rejects Engineers defence that he relied
on a competent contractor
5
NEWS HEADLINE
Estates Engineers GUILTY Judge will sentence
next week
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The Sentence
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Corporate Manslaughter

• What is wrong with the Current Law?

• Both individuals and corporations are subject to
  law of gross negligence manslaughter
• Manslaughter - generally involuntary killing
• Murder - intention to kill or inflict grievous
  bodily harm

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Corporate Manslaughter

• What is wrong with the Current Law? (2)

• Gross negligence manslaughter - 3 tests

• Indifference to obvious risk of injury (eg no
  risk assessments)
• Actual foresight of risk but determined to run
  it (eg ignoring outcome of risk assessment)
• Attempts to avoid risk but still commits criminal
  gross negligence (eg does not put in place all
  measures necessitated by risk assessment)

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Corporate Manslaughter
What is wrong withthe Current Law? (3)

• Any individual within an organisation (as well as
  the organisation) can be prosecuted for
  criminal gross negligence from a director to a
  maintenance engineer.
• The prosecution must prove

• the actus reus criminal act (death caused by
  defendants gross negligence) AND
• the mens rea guilty mind (indifference to risk
  of injury)

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Corporate Manslaughter
What is wrong with the Current Law? (4)

• Corporation can be prosecuted (as if it were an
  individual) if its actions can be ascribed to
  those of a human with whom it can be identified
  ie the directing or controlling mind.

This is called the identification principle In
large organisations identifying a directing or
controlling mind is generally impossible
instead manslaughter charges are brought against
individuals responsible for the operational
failure that caused death.
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Corporate Manslaughter
What is wrong with the Current Law? (5)

• Herald of Free Enterprise ran aground off
  Zeebrugge, 1987 (192 dead)
• Kings Cross Underground Fire, 1981 (31
  dead)
• Piper Alpha Oil Platform disaster, 1988
  (167 dead)
• Clapham Rail crash, 1989 (37 dead)
• Kegworth Airline crash, 1989 (47
  dead)
• Hillsborough football stadium disaster (97
  dead)

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Corporate Manslaughter
What is wrong with the Current Law? (5)

• Marchioness river boat sinking, 1989 (51
  dead)
• Port of Ramsgate Walkway collapse, 1997 (6
  dead)
• Clapham rail crash, 1997 (7 dead)
• Ladbroke Grove rail crash, 1999 (31 dead)
• Hatfield rail crash, 2000 (4 dead)
• Potters Bar rail crash, 2002 (8 dead)
• Grayrigg, Cumbria rail crash, 2007 (1 dead)

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FACT
Since 1992 there have been 34 prosecutions for
work-related manslaughter, but only 6 small
organisations have been convicted!
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THE CORPORATE MANSLAUGHTER BILL
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• Companies and other organisations must be held
  properly to account for gross failings by the
  senior management which have fatal consequences.
  On the other hand, as an offence of homicide,
  corporate manslaughter charges must be reserved
  for the very worst cases of management failure.
  (emphasis added)
• Extracted from the Home Secretarys foreword to
  the draft Corporate Manslaughter Bill (March
  2005)

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Identification Principle replaced by

• An organisation is guilty of the offence of
  corporate manslaughter if the way in which any of
  the organisations activities are managed or
  organised by its senior managers-
• Causes a persons death, and
• Amounts to a gross breach of a relevant duty of
  care owed by the organisation to be deceased.

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Aspects of the proposed Offence
When is the offence committed? When there is a
death either resulting from one-off harm or
long-term damage to health. What will be the type
of behaviour giving rise to the offence?

• Failure in the way in which the organisations
  activities are managed or organised

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Aspects of the proposed Offence (2)

• Focus is on management failure (by commission or
  omission) in relation to the arrangements and
  practices for carrying out the organisations
  work
• The relevant management failure may have been the
  backdrop to an immediate negligent act by an
  employee (or someone else) that was the actual
  cause of death.

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Aspects of the proposed Offence (3)
At what level must there have been a failure of
management?

• Senior managers acting collectively or
  individually.
• Senior managers must have significant role in
  making decisions on how the organisations
  activities are to be managed or in the actual
  management of them.

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Aspects of the proposed Offence (4)

• Senior manager test was heavily criticised by
  recent pre-legislative inquiry conducted jointly
  by Home Affairs and Work Pensions Select
  Committees because
• it puts focus back on individuals.
• it creates legal argument over definition of
  senior manager and whether the senior managers
  role was significant.
• offence should not be based on culpability of an
  individual but on concept of management failure.

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Aspects of the proposed Offence (5)

• To whom will offence apply?
• all corporations (not corporations sole).
• government departments and agencies (Crown
  immunity to be removed).

• What degree of management failure will be
  required?
• The gravest management failure amounting to a
  gross breach of a relevant duty of care owed by
  the organisation to the deceased.

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Aspects of the proposed Offence (6)

• Gross breach - behaviour falling far below
  what can reasonably be expected of the
  organisation in the circumstances.
• Jury will have to decide whether conduct amounts
  to gross breach by considering
• extent to which organisation failed to comply
  with health and safety legislation (eg CDM
  Regulations).

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Aspects of the proposed Offence (7)

• extent to which senior managers were aware of the
  failing (this is likely to be removed if senior
  manager test goes).
• extent to which organisation sought to profit
  from failing (this is likely to be removed
  because it is sentencing consideration).

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Aspects of the proposed Offence (8)

• Relevant duty of care
• Home Office reluctant to impose liability
  whenever a management failure causes death -
  would create uncertainty
• More practical option is for offence to relate to
  existing legal obligations on organisations to
  take reasonable care

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Aspects of the proposed Offence (9)

• Therefore, relevant duty of care embraces
  duties owed to employees, duties owed as occupier
  of land and those owed in connection with
  supplying goods and services or other commercial
  activity.

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Aspects of the proposed Offence (10)

• Where must the death and/or management failure
  occur?
• The harm resulting in death must be sustained in
  England or Wales or in places subject to English
  Law (e.g. ships, planes, oil rigs)
• The gross management failure must be by
  corporations operating in England and Wales

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Aspects of the proposed Offence (11)

• What will the sanctions be?
• Principle sanction will be an unlimited fine
• Courts will be given power to order organisations
  convicted of the new offence to take steps to
  remedy the management failure that caused the
  death ie both the failure (eg inadequate risk
  assessment processes and/or monitoring) and the
  immediate cause of death (eg inadequate safety
  precautions).

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Corporate Manslaughter v. Health Safety at Work
Act

• It shall be the duty of every employer to
  conduct his undertaking in such a way as to
  ensure, so far as reasonably practicable, that
  persons not in his employment who may be affected
  thereby are not thereby exposed to risks to their
  health and safety.
• S.3(1) Health Safety at Work etc Act 1974

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S.3(1) HSWA 74

• R v Associated Octel Co Ltd (1996)
• Contractors employee injured in explosion in
  confined space within a chemical plant. Employer
  argued it had no right to control manner in which
  contractor carried out his work.
• CA held employer was liable
• The cleaning, repair and maintenance of plant,
  machinery and buildings necessary for carrying on
  business is part of the conduct of the
  undertaking, whether or not by the employers own
  employees or by independent contractors.

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S.3(1) HSWA 74

• R v British Steel (1995)
• Accident involving two contractors who disobeyed
  instructions and had performed their work in an
  extraordinary and unforeseen manner. British
  Steel argued that the directing mind or senior
  management of the company had taken reasonable
  care to delegate supervision of the operation.

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• Since Parliament considered it necessary for the
  protection of public health and safety to impose
  absolute criminal liability, it would drive a
  juggernaut through the legislative scheme if
  corporate employers could avoid criminal
  liability where the potentially harmful act is
  committed by someone who is not the directing
  mind of the company
• (Court of Appeal in R v British Steel)

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Minimising the Risk

• Competence looms big
• Monitoring and supervision
• Design out risk
• Supply chain and procurement

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Competence

• Organisations should engage competent
  contractors.
• But what is meant by competent?
• a competent person .is a practical and
  reasonable man, who knows what to look for and
  knows how to recognise it when he sees it.
• (Cantley J. in Gibson v Skibs A/S Marina
  1966)

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Competence (2)

• No person shall arrange for a designer to
  prepare a design unless he is reasonably
  satisfied that the designer has the competence to
  prepare that design.
• Reg. 8(2) Construction (Design and Management)
  Regulations 1994

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Competence (3)

• No person shall arrange for a contractor to
  carry out or manage construction work unless he
  is reasonably satisfied that the contractor has
  the competence to carry out or, as the case may
  be, manage, that construction work.
• Reg. 8(3) Construction (Design and Management)
  Regulations 1994

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Competence (4)

• Track record in similar projects/project types.
• Experienced staff (inc. methods for assessing
  capability of employees).
• Clear processes and procedures for risk
  assessment and management.

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Competence (5)

• Methods of communication.
• Resources specialist knowledge, support and
  technical facilities.
• Check contractors health and safety documents,
  training records, quality assurance procedures,
  project review and monitoring documents.
• (from HSEs Guidance Designing for Health
  Safety in Construction, 1995)

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Monitoring Supervision

• Monitoring and supervision needs to put in place
  by each undertaking in the supply chain.
• Check that there are regular risk assessments
  reflecting any significant health safety risks
  that may arise with a plan for eliminating such
  risks.

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Monitoring Supervision (2)

• It was incumbent upon an operator like the Port
  of Ramsgate to have proper management systems in
  place to ensure that they had some control over
  the process of design and construction carried
  out by contractors.
• (Court of Appeal in the Port of Ramsgate case
• in 1997 in which six members of the public
• were killed and seven seriously injured by a
  walkway collapse.)

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Designing Out Construction Health Safety Risks

• About 60 of total accidents on building sites
  arise from decisions made upstream of the site.
• (From Drawing Board to Building Site, 1991
• European Commission Report )

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Designing Out Construction Health Safety Risks
(2)

• In 40 of the incidents, designers had clearly
  not discharged their duties
• In 35, design decisions were not
  involved/relevant and
• In 25, designers had hardly or not fully
  discharged their duties.
• (HSE desk top review of 70 accidents
  investigation reports
• presented to CONIAC 27.3.03)

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CDM Regs

• Derived from the Temporary or Mobile Construction
  Sites Directive 1992.
• Overarching framework for management of health
  and safety risks from planning and design to
  construction and use.
• Duty (for the first time) on designers to design
  out risks.

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CDM Regs (2)

• CDM Regs have not achieved their aim of promoting
  a holistic approach to health and safety risk
  management issues.
• 2007 Revision of CDM Regs
• Increased duties upon clients.
• Raises the issue of corporate competence.
• Likely to impact upon procurement of design.

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Supply Chain Procurement

• Early involvement of key organisations/ personnel
  in planning and design.
• Contracts to clearly define roles and
  responsibilities weasel words are out!
• Communication pathways to be transparent clear
  audit trails of responsibility.
• Move away from the blame culture project
  insurance.
• Legal duties cannot be delegated only their
  performance.

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Code of Hammurabi

• If a builder builds a house for a man and does
  not make its construction firm, and the house
  which he has built collapses and causes the death
  of the owner of the house, the builder shall be
  put to death
• and
• If it causes the death of the son of the owner
  of the house there shall put to death the son of
  that builder.
• (Articles 229 230 Code of King Hammurabi of
  Babylon, 18th century BC)

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Corporate Manslaughter The Bill

• Professor Rudi Klein Barrister, Chief
  Executive
• Specialist Engineering Contractors Group
• 34 Palace Court, London W2 4JG
• Tel [phone] Fax [phone]
  E-mail info_at_secgroup.co.uk