Reducing the risk of a corporate manslaughter charge

Ensuring the right systems in place is essential if public sector bodies are to avoid falling foul of corporate manslaughter laws, writes Anthony Barker QC

Most people in public sector organisations know that corporate manslaughter came into force as a legal offence on 6 April 2008. The old common law offence of gross negligence manslaughter has gone for companies, but still exists against individuals.

The essence of the new offence is that there must be:

1. an organisation to which the Corporate Manslaughter Act 2007 applies;
2. the way in which its activities are managed or organised causes death and amounts to a gross breach of care;
3. the way in which activities are managed by senior management amounts to a substantial element in the breach.

These criteria are further defined but the scope of the new law applies not just to companies but to public sector bodies including local authorities, government departments, police and fire and rescue services. Policy decisions may be excluded but management decisions in the usual sense are not.

The first and most important lesson for organisations subject to the law is that their systems are vital. Health and safety laws must be applied, risk assessments must be carried out. Senior management must monitor the systems for health and safety. Most large organisations have safety as an agenda item at board meetings. There is a case for ensuring that discussion of safety takes place at board level. Non-executives can be liable if systems are inadequate.

Equally the systems that are in place for dealing with an incident are extremely important. Investigations will show what had happened. Was it a systems failure? Was it a random event and therefore not reasonably foreseeable? Was it human error? If so, was that a result of a failure of the training system? Was what happened the result of a system used by employees contrary to their instructions but condoned by management at some level?

Those investigating not only have the best chance of finding out what went on and how to prevent its re-occurrence in the future; they also are the opportunity of demonstrating to any prosecuting authority, or ultimately the court, how seriously the particular organisation takes the incident.

Staying focused on health and safety

My experience over the years is that there are a number of types of event that occur and present trouble for the potential defendant. The business/organisation has just been taken over. The chief executive is concentrating on making the business work more efficiently. He does not do enough so far as safety is concerned.

The “Fresha Bakery” case was a serious breach of this sort. New management had not given safety the highest priority. Employees needed to go into a bread oven to retrieve broken parts. The oven was 22 yards long. There was a chain conveyor which could not be reversed. The oven had to cool sufficiently for the men to enter and walk along with the conveyor. It was Cup Final day: there was a hurry. The men went in before the oven was cool enough. One died in the oven, the second man died as he staggered out at the far end.

Management were aware of what was proposed. A manager was present at the oven. The chief executive was also aware.  The complete failure by management resulted in pleas by the company and relevant managers to HSWA offences. Today there would have been a conviction for corporate manslaughter and, I believe, common law manslaughter against a number of the management team.

The duty of care

Equally, there can be systems that the individuals responsible think are satisfactory but courts subsequently do not accept as such.

I give an example from motor racing. Highly experienced specialists decide that debris fencing is not required at one corner of a track, even though the other corners are so protected. This fencing is designed to prevent items such as wheels flying into the crowd after a collision. The racing view was that the distance that the crowd was back from the track rendered them safe, and there had been no incident in at least 400,000 laps of the track. A motorcycle left the track at a point and at a speed no-one had anticipated. Something projected it into the air over the normal barrier. Because it was travelling at a faster speed than anyone contemplated it reached the crowd (just) and injured a number of spectators.

The court disregarded the views of the specialists and held that there was an obvious risk, even if a low risk, and that the cost of debris fencing was only modest. In other words, managers are going to have to look beyond the obvious.  This is not a case, in my view, when there was any risk of a charge of corporate manslaughter. It merely demonstrates the ambit of the duty of care required.

Cases so far

There is, as yet, only one charge of corporate manslaughter going through the courts to my knowledge. It is from the construction industry and the defendant company is a one-man band where a trench collapsed. Whatever the result, it is unlikely that any real lessons will be learned for managers. There are other cases where individuals have been interviewed.

The real test will be where a large organisation is prosecuted. There the systems are likely to have been well thought-out and defensible. The issues managers need to be aware of are: have we thought of everything? Is this a dynamic work situation where systems have to keep up? Are there employer practices that run counter to the systems that have been considered?

As always it is a challenge for managers in both the public and private sector with which they will all cope as well as they can. The law is new and the problems will become more familiar as time goes by.

Anthony Barker QC is a barrister at No. 5 Chambers in Birmingham.