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Corporate manslaughter affects companies and individuals too

23 December 2021

Individuals might still be prosecuted for the offence of Gross Negligence Manslaughter. This means that if the company is being investigated, and staff with a management or front line role are being interviewed, they should seek legal advice. They should not assume that they are immune from being prosecuted personally for manslaughter.

Company staff and shareholders should also be aware that there is a potential for huge fines if a company is convicted. This can of course have personal consequences if it is forced into liquidation as a result.

The Law on Corporate Manslaughter

The offence is committed if the way in which an organisation's activities are managed or organised causes a person's death, and it is a gross breach of a relevant duty of care owed by the organisation to the deceased.

  • A corporation, organisation or other specified body with a relevant duty of care

  • Organised or managed its affairs

  • In such a way that a person was killed

  • And this was a gross breach of its duty of care to that person

What is a ‘relevant duty of care'?

A relevant duty of care means a duty that a company or organisation legally has to a person. This could be a duty of a company to not endanger its customers or employees, the duty of a prison not to act in a way which endangers its inmates while they are in custody, or even the duty of a bus company not to put its passengers in danger.

Are any organisations excluded?

Some organisations have partial exemptions from the duty of care in certain situations. The armed forces will, for example, be putting servicemen and women in harm's way, and the police responding to emergencies, in situations of public unrest or terrorist incident will not be held to the same standard as when they are on normal duties. Other examples include prisons during riots and other emergency services responding to emergencies.

What is a ‘gross breach'?

A gross breach means a very serious failure. The breach or failure of the duty of care has to be substantially down to management or organisation at senior level for it to be an offence of corporate manslaughter.

Strategy in Corporate Manslaughter cases

Of course, no two cases are identical. However, there are some aspects that most of these cases share in common, and these are things that a specialist corporate manslaughter solicitor should regard as the basics.

Understanding the cause of the death and the organisation itself

A front line operational mistake made by an individual or employee is not on its own enough for a jury to convict a company or organisation of corporate manslaughter. The prosecution have to prove that there was some aspect of the management of the organisation at senior level that was a major part of the cause of the accident. So, for example, if safety checks were not carried out because an employee responsible was secretly drunk on the job, the company is less likely to be convicted. But if the reason for the failure to check was that management had put no system in place for making checks, or no safety training for its employees, then the offence could be made out.

Because the role of management is part of the offence, really understanding the different causes of the accident is absolutely fundamental. This means that the legal team should place at the top of its list of priorities the process of understanding the management, practices, rules and culture that was in place in the company. The corporate manslaughter solicitors should perform site visits and do a thorough, independent reinvestigation of the death, speaking to all the relevant members of staff.

The need for defence experts

Independent specialist industry experts need to be brought in to give both commercial and regulatory assessments of whether the systems and practices in the company were adequate, as well as considering the events on the day. It is usually appropriate to bring in former government investigators in the relevant fields, such as health and safety or even food standards so that when the case goes before the jury the technical advantage is not simply on the side of the prosecution. Such experts may also conduct a ‘stress test' of all the related safety systems. Specialist corporate manslaughter solicitors will have a knowledge of the most appropriate type of expert for the particular case in question.

Providing the jury with a video tour of the relevant facilities if the incident was at an industrial location is sometimes also useful, if it demonstrates a particularly well-organised operation.

Choice of Barrister

It goes without saying that these cases require a specialist team of corporate manslaughter solicitors, and that does not just mean the solicitors, but also specifically chosen barristers or counsel. The defence legal team will usually include two barristers, sometimes three, and one must be of the rank of Queen's Counsel, which is a level perhaps equivalent to a senior consultant in the medical profession.

The barrister team must include corporate manslaughter solicitors with extensive homicide experience. Experience in cases involving death, serious injury and complex pathology evidence is essential. Given the relatively small number of corporate manslaughter cases trials in the UK each year, this experience will usually have come through years of experience of heavy murder cases, much of it at the Old Bailey (or Central Criminal Court) in London. This even goes for QCs outside London.

Sentences for Corporate Manslaughter

The defendant in a corporate manslaughter case is the organisation and these are cases which are indictable only which means they can only be dealt with at the Crown Court. Unless individuals are also charged with gross negligence manslaughter, prison sentences cannot be handed down.

However, the fines in these cases can range from the low hundreds of thousands of pounds to several million, although historically courts have been somewhat reluctant to consider the higher extremes of this range.

The court can also make a ‘publicity order' so that the conviction and any specified particulars are publicised. This is usually unnecessary in any case, because a certain level of publicity naturally follows a homicide case.

The court also has the power to make the organisation take certain actions to improve safety.

Corporate Manslaughter - Not Just Another Case

The legal team in these cases must appreciate that although individuals may not face criminal charges, the consequences on many people's lives if the company is convicted of corporate manslaughter can be very serious. Judges have historically not allowed the fact that a certain level of fine would result in the liquidation of the company to prevent them handing down that fine. Conviction will also usually guarantee failure to defend any civil proceedings, because the standard of proof in a civil court for the claimant is so much lower than the prosecution's in a criminal case. The lawyers need to understand that the life's work of the company founders, and the jobs and security of its employees are all at stake. There are no prizes for second place. To this end, the early instruction of specialist corporate manslaughter solicitors is a crucial early step.

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