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Corporate Homicide

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					Corporate Homicide

        Gavin Anderson
        Advocate

        www.westwateradvocates.com
“Corporate Killing”
Introduction

Prosecution of fatal accidents:

1.   HSWA 1974
2.   Culpable Homicide at common law
3.   Corporate Homicide under CMCHA 2007

______
Sentencing issues
Health & Safety at Work Act 1974

General Duty - Section 2(1)
  It shall be the duty of every employer to ensure, so far as is
  reasonably practicable, the health, safety and welfare of all his
  employees.


Particular examples – section 2(2)(a)-(e)
  safe plant; safe systems of work; provision of information and
  training etc.
HSWA 1974

General Duty – section 3(1)

  It shall be the duty of every employer to conduct his
  undertaking in such a way as to ensure, so far as is reasonably
  practicable, that persons not in his employment who may be
  affected thereby are not thereby exposed to risks to their health
  and safety.
HSWA – it seems to work

   Most commercial entities are covered
   Duties are widely defined
   Allows for prosecution under health and safety
    regulations
   Unlimited fines on indictment, especially important in
    fatal cases
   Allows for remedial action to be ordered by the court
   Few avenues of defence available (reasonable
    practicability; independent frolic in terms of R v HTM
    Ltd)
Is CMCHA needed if HSWA works?

   Under CMCHA, only organisations may be
    prosecuted, not individuals.
   At present, the available sentences remain
    mainly the same – unlimited fine; remedial
    orders; but publicity orders are new
   Higher fines likely, subject to means of the
    accused to pay
Culpable Homicide

   HM Advocate v Transco plc 2004 SCCR 1
   A body corporate or an individual may be charged
    with the common law offence of culpable homicide
   As culpable homicide requires proof of mens rea, a
    natural person or persons must be able to be
    identified as the controlling mind of the company so
    as to attribute their mental element to the company
   One cannot aggregate the mental state of disparate
    people or groups over a period of time
Problems with culpable homicide

   Because of the need to identify a controlling mind
    and the prohibition on aggregation, it is likely that
    sufficient evidence will exist only in the simplest
    business structures
   Evidence surrounding historic decision making,
    especially in larger companies, is likely to be vague
   Therefore, whilst competent, it is unlikely that many
    cases will be prosecuted at common law
   CMCHA 2007 does not interfere in the Scots
    common law offence of culpable homicide
CMCHA 2007 – background milestones

   Public disquiet since large-scale fatal accidents
   Law Commission Report on Involuntary
    Manslaughter 1996
   Government Consultation Paper on Involuntary
    Manslaughter 2000
   Draft Corporate Manslaughter Bill 2005
   Scottish Executive Expert Group Report 2005
   CMCHA into force throughout UK from 6 April 2008
    (not retrospective)
CMCHA 2007 – Section 1

   An organisation is guilty of corporate homicide if the
    way in which its activities are managed or organised
    causes a person’s death and amounts to a gross
    breach of a relevant duty of care owed by that
    organisation to the deceased,
   provided that the way in which its activities are
    managed or organised by its senior management is
    a substantial element in the breach
Organisation – section 1(2); Schedule 1

   The offence applies to organisations as
    defined under the Act – the new offence will
    not see company directors in the dock!
    Section 18 prevents are and part
    prosecutions of individuals
   Organisations covers corporations, most
    government departments, and partnerships
    which are employers
Disquiet about the new Act

   STUC General Secretary Grahame Smith
    was reported as saying that the government
    had let down the families of workers killed by
    their employers
   “This legislation will not allow for prosecution
    of individuals but only of the company. And
    even then, only if the failures of senior
    managers can be identified.”
Organisations II

   The Secretary of State may, by statutory
    instrument, add to the list of organisations
    covered by the Act (section 21)
   Jurisdiction is founded on the location of the
    harm resulting in death (section 28). So, the
    Act does not cover the acts of UK
    organisations abroad, but does cover the
    acts of foreign organisations in the UK
The way in which its activities are
managed or organised

   This covers issues of general management
    rather than isolated individual employee
    failure – management failures rather than
    isolated acts of negligence are what is
    important.
   Practices, procedures, protocols….
What is the activity?

   Is this akin to the conduct of the undertaking
    (section 2 HSWA)?
   Is there scope to argue that particular acts or
    omissions did not form part of the
    organisation’s activities?
   This is a matter for evidence - Sterling-Winthrop
    Group Ltd v Allan 1987 SCCR 25 at 29
The way the activity is managed or
organised

   Familiar concepts such as risk assessment,
    method statements, safe systems, provision
    of equipment etc. may be relevant here –
    each case will be fact-specific
Caused

   There must be a causative link between the
    way in which the organisation’s activities are
    managed or organised and the person’s
    death
Proviso

   There is an important proviso that the way in
    which the organisation’s activity was
    managed or organised must have amounted
    to a gross breach of a relevant duty owed by
    the organisation to the deceased; and
   The involvement of the organisation’s senior
    management must have been a substantial
    element in the breach
Gross Breach of a Relevant Duty of
Care

   “Gross breach” has its origins in the English common law offence of
    gross negligence manslaughter.

   Section 1(4)(b): conduct falling far below what could reasonably have
    been expected of the organisation in the circumstances

   R v Adamko [1995] 1 AC 171 (HL) per Lord Mackay of Clashfern LC
    “The jury will have to consider whether the extent to which the defendant’s conduct
    departed from the proper standard of care incumbent upon him, involving as it must have
    done a risk of death…, was such that it should be judged criminal.”

   In some cases it will be obvious to a jury that a gross breach
    has taken place, in others it may be arguable on the facts.
Transport
Construction
Service sector
Jury directions

   It is likely that directing a jury on the facts and the essentials of
    the charge will be a complex task
   Section 8 provides that in assessing whether there has been a
    gross breach, the jury must have regard to how serious any
    failure to comply with health and safety legislation and how
    much of a risk of death that posed. The jury may consider the
    extent to which company’s procedures were likely to have
    encouraged or tolerated that failure; have regard to any health
    and safety guidance.
   The prosecution must be alive to leading sufficient evidence to
    entitle the jury to consider these matters
Involvement of senior management as
a substantial element

   Corporate Homicide requires that a senior
    management failure has been a substantial (though
    not necessarily the essential) element in the offence.
   Section 1(4)(b) defines senior managers as those
    who play a significant role in managing the
    organisation’s activities.
   It may be argued in future cases about whether
    particular individuals comprise senior management
    or are mere underlings (R v Boal [1992] 3 All ER 111
    CA; Armour v Skeen 1977 JC 15).
Relevant Duty – sections 2-7

   The organisation must have owed a relevant
    duty to the deceased, being a duty of care
    under the law of negligence
   Examples listed in section 2 include the duty
    owed between employer and employee; as
    an occupier of premises; as a supplier of
    goods and services etc.
   Beware of the libelling of special capacities
    and the need to challenge these
Defences

   CMCHA creates no statutory defences such
    as due diligence or reasonable excuse
   Successful defences are likely to lie in
    challenging the relevancy of the libel or on
    insufficiency of evidence to satisfy the
    various statutory requirements
Sentencing - Fines

   Corporate Homicide is triable only in the HCJ (s.1(7))
    – the maximum fine is unlimited
   The sentencing considerations in R v Howe [1999] 2
    All ER 249 such as failure to heed warnings,
    profiteering at expense of safety, remedial action
    and safety record shall remain relevant.
   Sentencing Guidelines Council Definitive Guidance
    on Corporate Manslaughter & Health and Safety
    Offences Causing Death (15 February 2010)
Sentencing – Fines II

   SGC Paragraph 24:

    The offence of corporate manslaughter, because it
    requires gross breach at a senior level, will ordinarily
    involve a level of seriousness significantly greater
    than a health and safety offence. The appropriate
    fine will seldom be less than £500,000 and may be
    measured in millions of pounds.
Sentencing III

 Scottish Courts are likely to follow Sentencing
 Guidelines Council and the English courts’
 application of it:

 HM Advocate v ICL Tech Limited and ICL Plastics
 Limited (Stockline)

 HM Advocate v Munro & Sons (Highland) Ltd 2009
 SLT 233
Sentencing – Remedial Orders, s.9

   On motion of prosecutor only
   Requirement to consult enforcement
    authority
   Parties may make submissions/lead
    evidence
   Requirement for careful drafting
   Offence of non-compliance
Sentencing – Publicity Order, s.10

   May be made ex proprio motu
   Precise drafting essential
   Offence of non-compliance
   Organisation pays
   Exceptional cost of compliance may be taken
    into account in fixing level of fine
Conclusion

 Although HSWA will continue to be used in
 most fatal cases, CMCHA will be used for
 serious management failures cases involving
 gross breaches of duty.
 Cases will be complex and legal challenges
 inevitable in early stages. New sentencing
 options may make a difference.
And remember..

   Like it or not, every organisation must take
    health and safety matters seriously.
              Gavin J. Anderson
                  Advocate

Westwater Advocates, Parliament House, Edinburgh

				
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