If an individual manager/director in a company can be directly seen as responsible for the death of an employee how does the court decide what manslaughter charges are bought against them (or the company). My basic understanding of this section of the law is that corporate manslaughter is the same as gross negligence manslaughter if it is the company that is found is negligent.

So if the individual in question was an employee of the company, how is it decided whether to bring gross negligence or corporate manslaughter charges. (I might have this totally wrong, happy to be corrected)

just reading the IOSH magazine section on the new gross neglagence manslaghter charges and it got me thinikng.

Edited by user 12 September 2018 09:46:22(UTC)  | Reason: spelling

These are two different animals.  Corporate manslaughter is a statutory offence (ie one defined in a piece of legislation, in this case the Corporate Manslaughter and Corporate Homicide Act 2007). It can only be applied to corporations not individuals. The punishment is applied to the company ie a fine and/ or publicity order, not to any individuals.  Manslaughter was until the passage of this legislation a purely common law offence, ie one defined by precedents set by the courts.  In theory it was possible to prosecute a body corporate but the courts had decided that before company could be prosecuted, the prosecution had to establish that there was an “individual controlling mind” who was responsible for whatever breach lead to the manslaughter. This meant in practice that only small businesses were at risk of being prosecuted for manslaughter, as they had had a clearly identifiable “individual controlling mind”. In bigger corporations the responsibility was so shared out that the “controlling mind” could not be identified.  The 2007 Act   made the activity of the business as a whole and of senior managers as a whole the measure of criminal responsibility, this making it easier for companies to be prosecuted for manslaughter.

It should be noted that individuals cannot be prosecuted for aiding and abetting corporate manslaughter.

An individual could be prosecuted for involuntary manslaughter through gross negligence (which is still a common law offence) if it could be proved that the individual:

• Owed a duty of care to the  dead person-a manager would owe such a duty
• That that person died as a result of an action or omission  by the accused
• And that action or omission amounted to a gross breach of that duty of care, that is, it showed such a disregard for the life and safety of others as to amount to a crime and deserve punishment

It is for the jury to decide if the breach was a gross breach. This is a high hurdle for a successful prosecution which is why such charges are very rare. Maximum punishment for manslaughter is life imprisonment.

In the case the case of an employee being prosecuted for the death of another employee (including a manager for the death of a subordinate) the only charge that could be reasonably be brought is involuntary manslaughter through gross negligence.  No other charge exists apart from charges under the Health and Safety at Work Act. (Sections 36 and 37).

Edited by user 12 September 2018 12:06:31(UTC)  | Reason: spelling as alaways

A Kurdziel has almost hit the nail on the head in his post.  There is one error, that relating to a prosecution of 'involuntary' manslaughter.  All manslaughter is by definition 'involuntary' as if there was intent to kill it would constitute murder.  

The two common-law offences against individuals are 'unlawful act manslaughter', which is an offence under sections 224 and 225 of the Criminal Justice Act 2003, for which an individual can only be guilty for an act (but not an omission) that causes a death.  This creates a very high hurdle for the prosecution to overcome.

The second is 'gross negligence manslaughter' which can be committed by an act or an omission which causes somebody's death.  In his post, A Kurdziel set out the test for gross negligence manslaughter omitting only that the death must be a foreseeable result of the grossly negligent act.  See the leading case of R v Adamako.

Individuals, partnerships and other unincorporated bodies (i.e. many clubs and societies) cannot of course be guilty of corporate manslaughter, which is an offence restricted to bodies corporate (public or private).

I hope this clarifies things.

Regards.  DJ

It's interesting that the search for a contolling mind is so helpful to the white collar criminals running businesses[not all, of course!] when this objective does not apply if you are considering a group of young men who have been involved in the commiting of a murder or manslaughter where under the 'joint enterprise' doctrine or common purpose they can all be found guilty even if one or more are on the periphery.

Could this not have been used in, say, the case of the group of recalcitrant senior managers/directors eg in the Herald of Free Enterprise case where the more criminal behaviour the better as no individual controlling mind could be identified!-mad eh? the defence is that we have many 'negligent' people not just one. Well done Ld Denning!

Regards

Mike

Hi Andrew,

Yes, I appreciate the current position [where individual responsibility was lobbied out of the original 1996 position] but I was more interested in the difference between the treatment of white collar criminals and 'gang' cultures as it were [by their own opinion the Met are the biggest gang in London] of the iniquitous joint enterprise doctrine which has also been refined a little.

Funny how the bankers and financiers have escaped yet again and will in the future unless.......

Regards

Mike

 Hi Ray

Bit late on this!

Yes, the two pieces of law are quite poor to say the least.

I also agree wirh you that section 1 of the CMCHAct is explicit.

But my main aim, seeing as the OP had been resolved, was to get some discussion going on White Collar crime as that's our area and the comparison with Joint Enterprise which is applied at the lower end of the class structure--No takers though, ah, well.

Regards

Mike

PS Hope your golf is rewarding we've been fixing a new pool liner-it's tough being retired, eh?

Bit of a delayed reply, but if anybody is interested in the topic, try seaching the Lion Steels case.

In brief, the Company was charged with Corporate Manslaughter and at the same time, three Directors were charged with gross negligence manslaughter.

The judge felt the jury would be confused by two simultaneous trials with a different burden of proof, so he proceeded with the Gross Negligence Manslaughter trial and said the Corporate Manslaughter would be tried afterwards.

During the trial, a deal was offered whereby the individual manslaughter charges would be dropped in return for a guilty plea of CM on behalf of the company. An interesting legal / moral conundrum, as the directors had a statutory duty to act in the best interest of the Company, but pleaded guilty on its behalf in order to save themselves personally.

Even more interesting was that the Company was found guilty of a Corporate Manslaughter charge for which it wasnt actually on trial at the time!

Members should also be aware that new the sentencing guidelines for gross negligence manslaughter come into force on the 1st November.  These changes will have a major effect on how the courts approach gross negligence manslaughter cases.  For example: 

A manslaughter case with very high culpability has, at present technically, a starting point of 18 months imprisonment with a sentence range of 1-2 years.  In November this starting point will start at 12 years imprisonment with a sentence range of 12-18 years.  I said techincally as these changes are retrospective and will apply after the 1st November no matter when the offence happend.

Even manslaughter cases with a low culpability will attract a sentence of 2 years imprisonment with a sentence range of 1-4 years.

Hopefully directors will take a more robust line to health and safety.....