Could it be You? Corporate Manslaughter Helen Devery BLM Manchester

Manslaughter cases 226 deaths in 2002/03 235 deaths in 2003/04 Since 1992 253 referred to CPD 69 prosecutions 18 convictions

Disasters No-one accountable for loss of life in major disasters Herald of Free Enterprise, 1987 Kings Cross fire, 1987 Piper Alpha, 1988 Southall rail crash, 1997 Paddington rail crash, 1999 Potters Bar, 2002 Morecambe Bay, 2004 No-one accountable for loss of life in major disasters

Hatfield 2000 Balfour Beatty Network Rail Managers charged

Current legislation Corporate manslaughter A company can only be convicted if a company officer can be Shown to be guilty of manslaughter himself and Identified as the ‘controlling mind’ of the company

Problem is one of… Identification Of a director who is blameworthy The so-called ‘guilty controlling mind’ Direct casual link Between director’s area of responsibility and resultant death

Identification problem ‘Where a corporation, through the controlling mind of one of its agents, does an act which fulfils the prerequisites of the crime of manslaughter, it is properly indictable for the crime of manslaughter’. R v P&O European Ferries (Dover) Ltd ‘Unless an identified individual’s conduct, characterisable as gross criminal negligence, can be attributed to the company, the company is not, in the present state of the common law, liable for manslaughter’. Att. Gen. Ref No 2 of 1999

Corporate killers Pete Kite, 1994 Stephen and Julie Bowles, 1999 Brian Dean, 2002 John Horner, 2003 Convicted because they were small companies with an easily identifiable controlling individual

Peter Kite (Managing Director, OLL Ltd) 1994 Ignored previous advice British Canoe Union Guidelines were not followed Inadequate supervision

John Horner (Telgaard Hardwood) 2003 No safety policy No risk assessments No safe stacking procedure

Combating the problem? ‘A poisoned chalice’ Post of Health & Safety Director Board members and the Health & Safety Policy

Reform ‘There is great public concern at the criminal law’s lack of success in convicting companies of manslaughter where a death has occurred due to gross negligence by the organisation as a whole’. ‘The law need to be clear and effective in order to secure public confidence and must bite properly on large corporations whose failure to set or maintain standards causes death. It is not targeted at conscientious companies that take their health & safety responsibilities seriously’. David Blunkett, 21 May 2003

Proposals 1996 ‘Criminal Law, Involuntary Manslaughter’ The Law Commission 2002 ‘Reforming the Law on Involuntary Manslaughter’ 2002 ‘Involuntary Manslaughter: Regulatory Impact Assessment’ The Home Office

Proposed legislation Corporate killing A company will be convicted if it can be shown that: A management failure caused the death; and That failure constitutes conduct which fell ‘far’ below what could be reasonably expected Problem of identification overcome?

To find management failure What standard of safety could reasonably have been expected of this company offering services in this field Did the standard attained fall far below the reasonable standard? Did the failure to attain that reasonable standard cause the death of one or more individuals?

Individuals in the Dock? Focus on corporate failings But still possible to prosecute individuals for manslaughter where gross negligence causes death And Directors still face prosecution

The way forward Increased scrutiny of management systems Improvement of systems and assessments Pragmatic approach Learning from mistakes Keeping up to date with issues

Managing the investigation Process Seek early advice Check the D&O Policy Preservation of evidence Understand privilege Separate representation? Maintain communication

Helen Devery BLM Manchester Any Questions ? Helen Devery BLM Manchester