Hi all, I have a newbie type of question, please forgive but I'm struggling with this. If a death of an employee is caused by the negligence of a middle manager, who acted without the knowledge of a director, can the middle manager be prosecuted or does the responsibility fall only on directors regardless of who made the error or omission which led to the fatality?

If your acts or omissions cause death or even injury to someone else you can be held directly responsible regardless of what position you hold.

But of course under corporate manslaughter it is the organisation that is prosecuted not its senior managers or any individual.  They could of course be prosecuted for other offences.

If the director couldn't possibly have known that something was wrong, he is not culpable through negligence (for manslaughter), nor through consent, connivance or neglect (HASAWA section 37). 

It is only if he should have known or done something but didn't that he is culpable.  This need not be based on knowledge of the specific situation, though; if he knew or should have known in general terms that standards were terrible and he didn't do anything about it, or actively encouraged short-cuts, he could have created an environment that allowed this specific situation to come about it.  In that case he might be charged with an offence. 

If the middle manager is culpable, it may not be a manslaughter charge against him.  A HASAWA section 7 charge might be preferred as easier to prove.

It all depends on the facts of the case and what the prosecutor feels able to prove, it isn't possible to give a general answer about who will be charged with what.

Sometimes a fatality occurs, the HSE investigate, they find some failings that led to the fatality, but still they don't prosecute anyone.

In your scenario, one, both or neither of them might be charged with an offence, it depends on the extent of the culpability of each.

Hi

Section 36 is the most appropriate for your circumstances-check it out

Regards

Mike 

As a depot manager in a former life I was authorised to spend quite a bit on tools and plant I deemed necesary and unless my manager said something the directors wouldn't have had a clue.

I spent £3k on a workshop heater once and because I was still within my budget nobody said a word so I can see how it is possible that senior managers might not know about something.

Originally Posted by: Roundtuit

Sorry but if a manager introduced new plant it would likely be subject to some form of expenditure request and certainly a line item or two in the financials - there is no way a director "did not know"

Thanks again. I agree that the senior management (directors) are overall to blame for the poor safety management system, let's say (hypothetically) the directors asked you who was likely to face manslaughter charges (if anyone) what would you say?

Remember, the directors knew nothing, the middle manager acted alone when he ordered the plant (he had no specialist knowledge of the plant and did not appreciate the danger it posed) and asked the staff to use it (without training, etc) and they did because they wanted to please him, but the system did not flag (require) any RA's etc.

Who goes to jail?

For the record, I decided that no-one would because no-one acted reprehensibly. No-one intended for it to happen and I couldn't see a jury convicting, I thought the CPS would not proceed. Though I think they should. (Personally, I think when companies are formed and begin to employ staff, the directors SHOULD be liable for their safety and make sure they get the best advice to maintain it)

I can easily see a conviction under section 2 HASAWA and a parallel corporate homicide conviction.

But, I really am new here, slowly getting the picture...

What do others think????

Originally Posted by: Shopland23872

If you look up 'The Adamako Test' and the definition of 'mens rea' this will help you to answer your question accurately.

Excellent! thank you. I have seen the Adamako Test before but mens rea is new to me. But in Adamako, the anesthetist was directly involved in the death, being part of the operation, so I can see how he could be considered culpable. In my hypothetical case, it's not so cut and dried.

But I'm leaning more towards the possibility of a conviction for manslaughter (gross negligence), because the directors duty of care is a strict liability, it doesn't matter that he didn't know, he should have known, and he should have ensured that procedures were in place to  make sure he knew and could control the risk.

Is that about the size of it? And the other workers involved, they had no direction to follow, no safe system of work, no instruction, so they were not culpable?

Dave

It all depends on the material facts of the case on what charges are brought as there are a number of different options available to the HSE and CPS (manslaughter). In the most severe of cases a charge of gross negligent manslaugher will be considered, which incidentally is quite rare in h&s cases. Pre-empting what the authorities will do is a matter for conjecture, albeit it does make for an interesting debate.   

Well, thank you all for the replies, it helped a lot and gave me some interesting reading pointers too.

In the end I decided that there was certainly a case for a prosecution for both MGN and Corp Manslaughter, but that conviction was unlikely for MGN, possible for Corp Mans, but a more likely charge would be under HSWA. But really I think the important lesson was that directors can't remove themselves from culpability by ignorance, I understand strict liability. It was a good lesson. 

Thanks again, Dave

It seems having read through lots of accounts of trials and convictions that the 'final' part of the Adamako test is still difficult to quantify. What constitutes conduct "so bad in all circumstances"?

In most of the accounts I've read where a conviction was successful, there seems to have been issued a previous warning, improvement notice or some such from an inspector, or damning evidence of workers complaining about dangerous working practices.  

The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission... (Lord Mackay)

I suppose where there is a jury trial, as the old saying goes their job is to decide who paid for the best lawyer.

But I am glad that there is a risk of conviction, that should be enough to frighten all but the most determined miscreant to seek compliance, and that's a good thing.

Thanks, Mike, for taking the time, I appreciate it.

I do understand that hypotheticals are a minefield. I only had limited info and had to make a call. I think I got it right but as you say you need a lot more info to make a proper judgment. The problem is you don't know what to believe... so make posts and so many comments, so many appraisals of a situation online now. It's obviously more of a case of reading what actually happened and what the HSE/court decided in past actions, and thinking 'could this happen in my scenario'

It has been interesting though, and great chatting it over.