On 6th March 1978 the Herald of Free Enterprise capsized outside Zeebrugge resulting in 192 deaths. The Sheen enquiry which followed found that ‘from top to bottom P&O ferries was infected with the disease of sloppiness’. In 187 of the deaths the coroner returned verdicts of unlawful killing, yet a prosecution for manslaughter against P&O Ferries and 7 of its employees collapsed. Similarly the Kings Cross Fire, the Piper Alpha disaster and rail crashes at Clapham, Southall, Ladbroke Grove and Hatfield have been blamed on poor management or safety practices but they have not resulted in successful prosecutions for manslaughter. These high profile tragedies have however led to a growing public demand for corporations to be held criminally responsible for the consequences of their acts and omissions.
In the history of English law only three companies have been the subject of a successful prosecution for corporate manslaughter. All of these have been small or one-man companies. The reason for this is that, in order to obtain a conviction, the prosecution must show that an individual who embodies the company is also guilty of manslaughter. Effectively this means that a senior manager must have known all of the relevant facts that led to the death and he must have been grossly negligent in failing to prevent it from happening. This is virtually impossible to prove in large corporations where the management structure can be diffuse and the responsibility spread over a number of managers, none of whom has sufficient individual responsibility to justify a charge of manslaughter.
Currently, prosecution for breaches of the Health and Safety Legislation are far more common. For example, Great Western Trains was fined a record £1.5 million after the Southall rail crash for such breaches. A prosecution for manslaughter was ruled out as there was no suitable individual who embodied Great Western Trains and could be found guilty. There is a view that, in any event, the imposition of a fine results only in the costs being passed on to customers, employees and shareholders without punishing those who are truly responsible.
In May 2000 the government published a consultation paper which proposed the introduction of an offence of corporate killing. Unlike the present law, which has developed to punish individuals, this offence would be specifically designed to punish corporations. A corporation would be guilty of an offence if a management failure, falling far below what could reasonably be expected in the circumstances, is the cause of a person’s death. A prosecution would no longer need to show that a single manager was responsible for the death but would instead need to show that the company management as a whole had been negligent in failing to take steps which would have prevented the death.
The consultation paper suggested that the company’s assets might be frozen and that action could be taken against other companies in the same group where the group structure was being used as a mechanism to evade liability. It was also suggested that there would be a separate criminal offence against directors and officers who had substantially contributed to the management failure and that culpable officers could be disqualified from any management role in Great Britain.
However, the Government’s thinking appears to be changing. The Home Office recently sought contributions from interested organisations to an assessment of the likely impact of the new offence of corporate killing. The current suggestions appear to be that:-
- there will be no offence of significantly contributing to the management failure. Instead managers and directors will continue to be prosecuted under current manslaughter laws.
- individuals who have influenced the management failure will not be disqualified from acting in a management role.
- whether a management failure has fallen far below what could reasonably be expected in the circumstances will be measured against industry standards and could therefore take account of the inherently dangerous nature of some industries.
- no special rule to allow for the freezing of a company’s assets when it is being prosecuted for corporate manslaughter will be introduced.
There is presently no parliamentary timetable for the introduction of legislation although the Home Office is keen to complete its assessment of the impact of the new offence before the next parliamentary session begins. Directors and managers will continue to watch developments closely.
Written by Allan Sanderson and Clare Wilson