Corporate manslaughter - NESHEP 03 12 13

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Presentation by Andrew Swan of Short Richardson & Forth LLP at our main meeting on 3rd December 2013

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Corporate manslaughter - NESHEP 03 12 13

  1. 1. Corporate Manslaughter Andrew Swan Short Richardson & Forth LLP 3rd December 2013
  2. 2. Andrew Swan - Solicitor Specialist: • Regulatory Breaches • Business Crime • Fraud • Money Laundering • Tax Evasion • Trade Mark Infringements
  3. 3. History • Common law offence of Gross Negligence Manslaughter • Very low prosecution rates! • The identification principle • Herald of Free Enterprise 1987 • Clapham Rail Disaster 1988 • Lyme Bay Tragedy 1993
  4. 4. Corporate Manslaughter and Corporate Homicide Act 2007 • Came into force 6 April 2008 • Not retrospective • Health & Safety offences continued • Gross negligence manslaughter continued against individuals • Much excitement and expectation
  5. 5. Corporate Manslaughter • Section 1 – The Offence – An organisation is guilty of an offence 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 the organisation to the deceased. • NB – the breach must be directly attributable to senior management failure
  6. 6. So what does all that mean? • Elements of the offence: – – – – – defendant is a qualifying organisation, the organisation causes a person’s death, there was a relevant duty of care owed, there was a gross breach of that duty, directly attributable to senior management, and – the defendant does not fall into an exemption.
  7. 7. Qualifying Organisation • a corporation • a partnership • government departments/local authorities • a police force • a trade union/employer’s association
  8. 8. Causes a person’s death • The prosecution must always show a causal link between the act/omission and the death. • The act or omission must be a substantial cause of death, but it need not be the sole or main cause of death. It must have "more than minimally, negligibly or trivially contributed to the death." - Lord Woolf
  9. 9. Relevant Duty of Care • Those duties owed under the law of negligence, including: – – – – – Employer duties Occupier duties Duties under supply of goods and services Construction and maintenance work Using or keeping plant/vehicles
  10. 10. The Gross Breach The breach of a duty of care is only a “gross” breach if it falls far below what could reasonably be expected of the organisation in the circumstances, i.e. what would the reasonable person think. Consideration to health and safety laws.
  11. 11. Gross breach and senior management • The breach must be directly attributable to the way senior management operate the business. • Consideration to be given to: – – – – attitudes policies systems accepted practices
  12. 12. Who are senior management? • Those who play a significant role in the management of the whole organisation or a substantial part. • Therefore, those who are able to influence the running of the organisation, but not just the ‘controlling mind’
  13. 13. The Exemptions • Certain exemptions to prosecution exist: • Comprehensive Exemptions (e.g. military/police activities) • Partial Exemptions (where duty still owed as employer/occupier)
  14. 14. Penalties • Unlimited fine (suggested starting point £500,000) • Publicity Order • Remedial Order
  15. 15. So, 5 years on. • Only 4 convictions to date: – Cotswold Geotechnical Holding – JMW Farms – Lion Steel Equipment Limited – Murray and Sons
  16. 16. Any change? • More investigations by Crown Prosecution Service: 70 60 50 – – – – – 2009: 2010: 2011: 2012: 2013: 7 cases opened 26 cases 45 cases 63 cases expected increase 40 Cases opened 30 20 10 0 2009 2010 2011 2012
  17. 17. Any Questions?
  18. 18. Andrew Swan Partner for Short Richardson & Forth LLP 4 Mosley Street Newcastle upon Tyne NE1 1DE DX: 61037 Newcastle upon Tyne +44 (0) 191 232 0283 (Switchboard) as@srflegal.co.uk Thank you Merry Christmas & all the best for the New Year

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