Justice vs collateral damage

It was anticipated that the Corporate Manslaughter and Corporate Homicide Act 2007, introduced in 2008, would lead to 10-13 times prosecutions each year. In fact, over the last 7 ½ years since the Act’s introduction, the Corporate Manslaughter offence has been prosecuted a mere 21 times in England, Wales and Northern Ireland.

The offence is committed when the way in which an organisation’s activities are managed or organised by its senior management:

• Caused a person’s death; and
• Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

The intention behind the Act was to move away from the difficulties faced by the prosecution in convicting a manager of gross negligence manslaughter before finding that manager so senior as to be the directing mind and will of the organisation. The Act would essentially make it easier to prosecute organisations following deaths because this identification principle would be unnecessary.

How has that translated into practice? Of the 21 organisations prosecuted, there have arguably been no heavyweight organisations. The idea of EvilWorldCorp being convicted more easily has not eventuated. Instead, small companies have mostly been on the receiving end of prosecutions and one reason for that is the ease with which a prosecutor can point to a senior management failure being a substantial element in the breach of duty. When the boss of a small business makes a decision and it kills someone, that business is an easy target.

The Crown Prosecution Service (CPS) is now though, perhaps emboldened by its experience, turning to bigger targets. Possibly the biggest organisation (Maidstone and Tunbridge Wells NHS Trust – ‘The Maidstone Case’) being prosecuted to date, may present difficulties when it comes to trial, as the CPS will have to demonstrate a link between senior management and the alleged breach, for which two doctors have already been prosecuted in their individual capacity following the tragic death of a patient during a routine Caesarian operation. The doctors are very likely many rungs down the management ladder. As bold a decision as it appears to be, it’s just the kind of link, between organisational and individual wrong-doings, that the Act was intended to break.

Of the 21 cases prosecuted, four are ongoing and three resulted in acquittals (although two of the organisations were convicted of health and safety offences). Of the 17 completed cases, 82% have resulted in convictions, which is around the average conviction rate for the CPS, and a little lower than for those prosecuting health and safety offences.

12 cases (57%) have also seen the prosecution of individuals. Of the 17 cases concluded, nine (53%) have resulted in convictions of individuals. No doubt it was helpful to the prosecution to be able to point to individual failures, to identify senior management failure such as is required to be found against the organisation. However, the comparative lack of success against individuals gives rise to concern.

A recent Freedom of Information request revealed the following rise in prosecutions of individual directors and senior officers under the Health and Safety at Work etc. Act 1974 since its introduction: (see image above).

It can be no coincidence that in fatal accident investigations, there is greater focus by the Police on senior management failure, therefore prosecutions of individuals have increased. However, one must wonder as to whether individuals are being unnecessarily brought into prosecutions of organisations to paint a picture to a jury of senior management failure, when that picture could as easily be painted without those individuals in the dock.

The profound and ultimately unjust effect on the 47% of individuals prosecuted and then acquitted of offences in manslaughter trials spring to mind. The policy and practice of the HSE, adopted by the CPS, is to prefer charges against an organisation over an individual, although the disparity in prosecution success rates between organisations and individuals in manslaughter cases suggests that the policy isn’t being applied in as targeted a way as it could be.

That’s not to say that individuals should never be prosecuted. But with the new sentencing regime for health and safety offences and corporate manslaughter being introduced in February 2016, one hopes that the CPS will think a little harder about prosecutions of individuals now that for the first time, there’ll be a sentencing starting point of imprisonment for those individuals convicted of health and safety offences where death has occurred.

Admittedly, it will take a certain amount of bravery on the part of a prosecutor to prosecute cases without individuals in the dock. But that’s what the Act was built for, otherwise the legislature would have made it possible for prosecutors to prosecute individuals for CM. Everybody wants the correct organisations and individuals to be punished for their crimes, but nobody wants manslaughter prosecutions to result in collateral damage.