Criminal Defences

A Guide to Corporate Manslaughter Defences

Learn more about defences that can be used for the offence of Corporate Manslaughter

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If your company or organisation has been charged with corporate manslaughter you are probably feeling highly concerned. You are most likely wondering about the implications for the company, your colleagues, your customers, and of course yourself. Perhaps you are wondering if the organisation might receive a hefty fine, and whether you may also be prosecuted personally. To clear up some of the confusion around this topic, this article provides some key details about the offence of corporate manslaughter, looking in particular at examples of evidence that the prosecution may take into account, any applicable maximum fines, and importantly, any defences that you may be able to rely upon to avoid conviction altogether or get a lesser punishment.

An overview of the offence of corporate manslaughter

Corporate manslaughter is where the grossly negligent actions or omissions of a company or other organisation result in the loss of human life. Corporate manslaughter is a relatively new offence in England and Wales. It is set out at Section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007 and it applies to offences committed after 6 April 2008. The offence is designed to hold organisations to account for very serious corporate failings that result in the death of a human being, or several for that matter. For the purposes of corporate manslaughter, the definition of ‘organisation’ includes:

  • corporations
  • government departments or other government bodies (see the full list here)
  • police forces
  • partnerships, trade unions, or employers’ associations that employ workers

To be convicted of corporate manslaughter, the jury must find that:

  1. There was a duty of care owed by the organisation to the deceased. Whether a duty of care exists depends on the facts of your case. Usually an organisation will owe a duty of care to their employees as standard. They will also owe a duty of care in some circumstances to customers and service users. Police and prison authorities owe a duty of care to detainees.
  2. The events leading to the death were a gross breach of the duty of care. This means that there must have been really serious failings by the organisation. The law says that for the breach to be ‘gross’, an organisation’s conduct must fall far below what is expected of it in the circumstances.
     
  1. The way in which the organisation’s activities were managed caused a person’s death. There must be a direct causal link between the actions or omissions of the organisation and the person’s death. This means the prosecution must show that the organisation’s breach was a cause of the death. Importantly, it does not have to be the only cause of the death, but it must be a cause that made a more than minimal contribution to death. Where the death was caused by a failure to act, the prosecution must show the deceased would not have died in the same circumstances but for the failure of the organisation. In other words, the prosecution has to prove that the person would not died had the company acted as it should have.
  2. The failings must have related to the way that activities are managed by senior management e. the individuals who play significant roles in making decisions, managing or organising the activities of the organisation.

What kind of evidence is used in corporate manslaughter cases?

The prosecution will need to show that the failings occurred as a result of systemic failings by the organisation. Therefore, the health and safety policies and records of the organisation are likely to be important evidence.

CCTV footage and witness testimonies of anyone present will also be important in uncovering the events that took place. The prosecution will probably seek to obtain the disciplinary records of employees who were involved as well as the service records of any machinery that played a part in the death. If the death related to a policy or procedure that was recently discussed by senior management, the prosecution will try to obtain minutes of any relevant meetings.

If you are a director or manager of the organisation, your own testimony, should you choose to give it, is likely to be key in showing the extent to which you were aware of the activity that led to the death. You may also be at risk of being personally prosecuted for gross negligence manslaughter, therefore you should definitely seek legal advice before giving evidence.

What is the maximum sentence for corporate manslaughter?

Corporate manslaughter is punishable by a fine to the organisation. The starting point of the fine is £180,000. The maximum is £20 million. The size of the fine depends on the culpability (blameworthiness) of the organisation’s conduct and the harm caused. The court will consider a number of factors in deciding on a fine, including: how foreseeable the injury was (for example, were there warnings or advice that were not heeded?); how far outside of the normal standards of behaviour the organisation fell; and whether there was more than one death or a high risk of further deaths.

The size of the fine also depends on the annual turnover of the organisation and its financial position. For example, a small organisation with a turnover of between £2 million and £10 million will face a fine of £800,000 to £2 million depending on the seriousness of the offence. For a large organisation with a turnover of more than £50 million, the fine will be at least £7.5 million, and may be as high as £12.5 million. More details can be found here.

What are the applicable corporate manslaughter defences?

Defences are a complex area of law and whether you can rely on a defence depends on the precise facts of your case. That said, corporate manslaughter charges are often defended on the basis that senior management was not responsible for the management of the activity in question. The organisation may defend itself by suggesting that a junior employee was responsible for the failing, and that it took place outside of the knowledge of the senior management team. For example, if the death occurred in a factory, perhaps it was the failure of a junior employee to operate machinery in accordance with their training, rather than a failure in health and safety protocols, that caused the death. Other defences include:

  1. One-off failures. The offence of corporate manslaughter was designed to punish systemic failures by an organisation. Therefore, it may be a defence to show that the death occurred as a result of an unfortunate one-off event, rather than ongoing mismanagement. This may be where, for example, the death occurred as a result of a unique and unforeseeable set of circumstances that are unlikely to happen again in the future.
  2. Lack of breach. Another commonly used defence is to argue that there was not a breach of the duty of the care, or that the failings do not meet the high threshold of being a ‘gross’ breach, as described earlier. To prove this, the defence might instruct experts in the field to comment on the organisation’s activities, namely to suggest that they do not fall so far below the standard expected so as to be gross. Perhaps, for example, the defence can show that other similar organisations manage their activities in the same way.
  3. Negligence of the victim. The organisation might be able to defend itself on the basis that the death occurred solely as a result of negligence or recklessness on the part of the victim. However, even if the victim was negligent, if the organisation’s failings contributed to the death, the organisation could still be found criminally responsible.

When it comes to individuals involved in corporate manslaughter cases (for example, company directors), defences are a little more complicated. Sometimes, when an organisation is charged with corporate manslaughter, the individuals involved are charged with gross negligence manslaughter. In those circumstances, if blame can be allocated to one specific individual, then that person might be convicted of gross manslaughter and the organisation itself may be acquitted.

Regardless of whether it is the organisation or an individual being prosecuted, it is important to note that corporate manslaughter charges can only be brought in England and Wales if the harm occurred to the person in England or Wales. If the harm occurred to the victim overseas, the courts of England and Wales will not be able to prosecute, even if the organisation’s senior management is based here. For example, if a construction worker was killed on a project in Dubai, even if the head office of the organisation is in London, charges for corporate manslaughter could not be brought in England and Wales.

Because corporate manslaughter relates to the wrongdoing of an organisation, general defences such as self-defence, automatism, and insanity do not apply. These defences relate to the mindset of an individual defendant therefore it is not possible to apply them to an organisation, which is composed of a group of individuals, each with their own personal thought processes.

What will a successful defence achieve?

A successful defence may lead to the organisation being acquitted or convicted of a lesser charge, such as an offence under health and safety regulations. It could also lead to directors, managers, or individual employees being convicted of safety-related offences, rather than something more serious like gross negligence manslaughter. Defences to corporate manslaughter are highly fact dependent, so it is always best to seek advice on your case from an experienced solicitor.

Where can I find help with corporate manslaughter offences?

If your organisation has been accused of manslaughter, you need to act quickly to determine the best course of action. Stuart Miller Solicitors is here to help. Our team of highly experienced criminal law experts will provide you with robust, honest, and realistic advice on your case and any applicable defences. Contact us today for a no obligation consultation.

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