The Law of Manslaughter Louise Christian Christian Fisher and Partners CCA Board Member

Manslaughter by a Company Criminal liability of company based on criminal liability of at least one individual Individual must be a controlling mind If that individual guilty company is guilty under identification doctrine (Attorney General’s Reference No 2 of 1999, Times 29/2/2000 – Southall Rail Crash case) Company compared to human body by Lord Denning (Bolton (Engineering) company limited v TG Graham and Sons limited (1957) 1QB 159)

TEST FOR MANSLAUGHTER R v Adamako (1995) 1 AC 171 Need to show –Duty of care –Breach of duty of care –Gross negligence in breach of duty – failure to heed serious and obvious risk The test is objective i.e. what would a reasonable person think is gross negligence (see Southall Rail Crash case cited above ) the gross negligence must be a substantial cause of the death but need not be the only cause

IS CORPORATE MANSLAUGHTER UNDER CURRENT LAW TOO DIFFICULT TO PROSECUTE? Only about six prosecutions brought Only three successful No successful prosecution over any disaster Evidence of DPP to House of Commons Select Committee on 8 th may 2000 Difficulties – Cannot aggregate acts or omissions of more than one individual – have to trace chain of responsibility up to the top –No statutory duties on company directors in relation to safety

HAVE PROSECUTORS BEEN GETTING IT WRONG R v DPP ex parte Jones –Immediate cause may be a foreseeable error rather than act or omission of controlling mind -Controlling mind does not have to be present at time of death -Controlling mind does not have to personally understand risk as long as a reasonable person would have done so -Controlling mind does not have to be involved in day to day decision making -But Compare assumption of personal responsibility/proximity test (Southall Rail Crash Case above)

HOME OFFICE PROPOSED REFORMS Home office proposals – home office consultative document in may 2000 four years since law commission report and no action since may 2000 New offence of corporate killing against company/organisation only New offence to be investigated by the HSE (or other regulatory body), marginalising the police in whole or in part. New Offence to be prosecuted by the HSE, not the Crown Prosecution Service Company directors to be liable to disqualification if their conduct has contributed to offence Crown bodies to be exempt No jurisdiction for offences committed abroad

CCA RESPONSE Welcome new offence but concern that may result in immunity for Directors or senior managers Should be investigated by a joint team of the police and HSE (or other regulatory body) - proper training of police and safety inspectors required Prosecuted by the CPS (with assistance from HSE) Need to impose statutory duty on company directors in relation to safety - code of guidance not good enough) Need new statutory offences to make clear where managers are individually liable Cont….

CCA RESPONSE (cont) Range of penalties such as corporate probation and director disqualification welcomed but directors must still face prison sentences in extremely serious cases Crown bodies should be able to be prosecuted subject to safeguards -includes prisons -consent of attorney general? British companies committing offences abroad should be within jurisdiction Would like to see more priority to legislation in this area