Corporate manslaughter is a crime that can be committed by a company in relation to a work-related death. This is called corporate homicide in Scotland. The offence was created to rectify the problem identified by a 17th century English judge that “Companies have a soul to damn, but no body to kick”.
The Corporate Manslaughter and Corporate Homicide Act came into force on 06/04/08. It is not retrospective and has only applied to deaths after that date. The offence enables a company to be punished for negligent conduct that leads to a person’s death (for example poorly constructed scaffolding that leads to a contractor falling from a building).
Corporate manslaughter does not affect any criminal investigation of individuals by the Crown Prosecution Service, or compensation awarded to the deceased’s estate in civil litigation.
The legal test
Every offence has a legal test. The prosecution will have to fulfil this test to prove that a company is liable for corporate manslaughter. Simply put, the legal test for corporate manslaughter is:
- The accused had a duty of care to the deceased
- The accused breached that duty of care
- The breach of duty caused the death and was so severe a breach of duty to be a crime (gross negligence)
- The accused is a ‘controlling mind or will’ of the company
A person who has a ‘controlling mind or will’ over a company is someone who is in sufficient control of the company’s affairs that the company can be said to act through them.
What constitutes gross negligence?
Negligence turns into gross negligence if the breach of duty falls considerably below what would reasonably be expected of the organisation in the circumstances. Whether the negligence is gross negligence depends upon considerations such as:
- How serious the failure was
- How real the risk of death was
- The attitudes, policies and accepted practices of the organisation which led to the failure
- Any health and safety guidance relating to the breach
Changes in the law
It is far easier to identify the controlling mind of a smaller company, and so get a conviction.
Case Law: Lyme Bay tragedy
This was the only successful prosecution for corporate manslaughter before the Corporate Manslaughter and Corporate Homicide Act 2007. Peter Kite, the sole owner of OLL Ltd, was jailed for three years and fined £60,000 following a canoeing accident in which four teenagers died at Lyme Bay. Mr Kite was found guilty because he was directly in charge of the activity centre where the victims were staying. Mr Kite’s custodial sentence was later reduced to two years on appeal.
In larger companies, it is often difficult to prove that the actions of one director or manager control the whole company. In the case of large companies, the prosecution often try to secure a conviction for breach of the Health and Safety at Work Act 1974 which is easier to prove.
Case law: Herald of Free Enterprise
This is one of the most famous corporate manslaughter cases before the Corporate Manslaughter and Corporate Homicide Act 2007 came into force. The Herald of Free Enterprise, a Townsend Thoresen car ferry owned by European Ferries, capsized in 1987 off the Belgian coast. 193 people died after the bow doors of the ferry failed to close and the car deck flooded. The jury returned verdicts of unlawful killing in 187 cases. However the corporate manslaughter case failed as the acts of negligence could not be attributed to someone with a ‘controlling mind’ over the company.
Case law: Transco
In 2003 the appeal court in Edinburgh rejected a charge of culpable homicide (the Scottish equivalent of corporate manslaughter pre-2007) against the gas pipeline firm Transco after four people died in Larkhall in 1999. However separate charges were brought under the Health and Safety at Work Act 1974 and the company were fined £15,000,000.
The difficulty is, under this law, it was not possible to add up the negligence of several individuals to show that a company has been guilty of gross negligence; a specific individual who is at fault has to be identified as ‘the controlling mind’ for corporate manslaughter to be proven.
The Corporate Manslaughter and Corporate Homicide Act 2007 aimed to redress the balance in favour of the victims to ensure that companies whose negligence leads to the death of its employees or the public are brought to justice. The Act now means that the breach of duty does not have to be by someone with a ‘controlling mind or will’.
Many people welcomed the new legislation as it forces health and safety issues to be the concern of every member of staff, from the directors downwards. It has also meant that convictions for corporate manslaughter have increased over 40% since the Act was passed. However most convictions are still against smaller companies, so it remains to be seen whether the 2007 Act will address the historical problem of prosecuting larger companies for the death of their employees.
Case law: Lion Steel Ltd
The company was charged in relation to the death of 45 year old employee Steven Berry who fell through fragile roof panelling sustaining fatal injuries. The company pleaded guilty to the offence on 4 July 2012 and was fined £480,000.
Punishment for Corporate Manslaughter
The Sentencing Guidelines Council gave guidance (in February 2010) to judges on the sentence for corporate manslaughter. The purpose of these guidelines was to distinguish between fines imposed for corporate manslaughter, and fines imposed for health and safety offences resulting in death.
One of the considerations is that the fine must be enough to punish the business but must not put the company out of business, as this would punish other employees. In particular this will be important if the company delivers services to the public.
The guidelines suggest that in cases of corporate manslaughter, the fine should rarely be less than £500,000 and may be several million pounds. This compares to a starting point of £100,000 for health and safety breaches. The fine for corporate manslaughter is unlimited, but is often 5% of the company’s turnover for a first offence, rising to 10% of turnover for subsequent offences.
Last Updated on 25 May 2021