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Posted By russell calderwood
Colleagues
For those interested in the current and future aspects of H&S manslaughter charges; the following reference to the Judge's ruling on why Barrow BC [pleaded G to HSWA] was cleared of corporate manslaughter for the seven legionnaires' deaths; will be very enlightening!
This case and ruling will undoubtedly shed a better understanding [and raise the stakes?] for those in positions of being 'controlling minds', as to their likelihood of having significant H&S resp/duties and liabilities arising.
http://www.nwemail.co.uk...ewarticle.aspx?id=203468
Please tender your views on the subject as these should help IOSH formulate a response to the current ongoing consultation -
http://www.homeoffice.go...cs4/tso_manslaughter.pdf
Note, it is reported that the BBC architect [G of HSWA] will be facing a MS retrial.
Russell
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Posted By Heather Aston
Russell
I liked the judge's comment at the end about it not being for judges to change the law but for parliament. I guess he wasn't too impressed with not being able to see the company go the distance on this one?
Two interesting points quoted during the judge's transcript.
A comment that the more specialist a role is, the less likely it is that the individual performing it will be the "guiding mind" (sighs of relief all round)
Second comment that it might be seen as being the case that all a company has to do to avoid manslaugher charges is to delegate its responsibilities around a group of employees (none of whom will have sufficient authority on their own to be the guiding mind)
The judge also said that (while this was not the question he was having to decide in this case) he was in some doubt as to whether even the CEO of Barrow BC could have been treated as the guiding mind in this particular case.
All this just adds to the case for changing the law on Corporate Manslaughter, although it remains to be seen whether the current proposals will have any teeth.
Heather
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Posted By Merv Newman
Fascinating.
1. As the law cannot locate a "controlling mind" for a LA, no LA can be prosecuted for manslaughter.
2. "Delegation" means carte blanche (excuse my French) : unlimited decisionary power, unlimited budget, no oversight/supervision, no questions asked. If you don't have all of the above then you have not been "delegated to"
Get it in writing folks. (and if you do, then you CAN cause your company/LA to be prosecuted for manslaughter)
Any one for a dose of bubonic plague ?
Merv
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Posted By Jack
'As the law cannot locate a "controlling mind" for a LA, no LA can be prosecuted for manslaughter.'
Hence the draft bill on corporate manslaughter which is intended to address these problems. It's not just LAs who slip under the net, so do all large organisations (Herald of Free Enterprise springs to mind).
Of course for corporations, similar penalties as for Manslaughter are available under HASAWA. As the judge said it's only because being prosecuted under HASAWA is not perceived as being of similar gravity that failure to prove corporate manslaughter is of such concern.
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Posted By steven bentham
A personal view:
I have never favoured people being charged for manslaugher unless there has been gross negligence that has directly caused the death. These cases would be better taken under S37 of HASAW (IOSH would be better pushing for a revision of S37 than corporate manslaugher).
After all you can drive your car today and kill someone by your negligent act and you will be unlikely to go to prison. So why should you go to prison if someone is killed at work and as a manager you have taken a poor decision?
Do you want a workman/supervisor or SAFETY ADVISER that takes a poor decision in prison when a death at work occurs?
Safety Advisers should be careful what they wish for!!! You only have to look back at some of the quality of the questions on this web-site and ask yourself if you are competent to face an investigation where your competency, actions and decisions would stand up for a manslaugher investigation.
If corporate manslaughter does see the light of day this will be more work for the Police, do you not want them catching drug dealers etc or chasing workmen/supervisors or safety advisers.
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Posted By Smurfer
strikes me as being a bit odd that the prosecution tried to show GB as the controlling mind and therefore get a prosecutuon for manslaughter of BBC, in addition to prosecuting her seperately. Perhaps they should've tried higher up the chain, or just gone for GB alone in the first place. Or have I misread the decision comments.
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Posted By Heather Aston
Smurfer
Not strange at all - it's exactly what they did (successfully) for the HASAW Act offences. I haven't seen the details of these but presumably the employee was prosecuted under s37?
The Corp Manslaughter charge did indeed fail because they couldn't prove that she was the guiding mind. Note that the judge said he wasn't sure he would have been able to say that even the Chief Exec was in such a position. It seems to be easier for them to prove the charge against an individual, although my personal view is that it can't possibly be in the public interest to have a re-trial.
Heather
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Posted By Jack
Heather,
No it was Section 7. If it had been 37 they would also have to shown she was part of the directing mind.
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Posted By Andy Bennett
HI All,
This whole Corporate manslaughter issue is confusing me !! (Im not the only one im sure)
People are mentioning the new corporate manslaughter bill, I was under the impression that the whole idea of a change to the law was to do away with the manslughter clause and introducenthe charge of corporate killing. This I am lead to beleive will take the away the need to prove or identify a controlling mind or "Mens Rea" and substitute this for proof where conduct falls far below that which can be reasonably expected in the circumstances.
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Posted By Heather Aston
Jack
I don't believe that the proof of guiding mind is required for a prosecution under S37 in the same way that it is required for Corporate Manslaughter.
S37 actually refers to the possibility of prosecuting "a director, manager, secretary or other similar officer of a body Corporate" for "consenting or conniving" in an offence commited by the body corporate or for the offence to have been "attributable to the neglect" of such an individual. It does not use the guiding mind concept.
I suppose it was just easier to failure in her Duty of Care for those affected by her "acts or omissions" under S7.
John - I'm not sure what the link was supposed to show? That CPS are obliged to prosecute for manslaughter where sufficient evidence exists? I would have thought that was in some doubt after the failure of the jury to reach a verdict. Maybe their hands are tied once a trial has been deemed necessary the first time? Any lawyers like to comment?
Heather
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