Hi

I've been asked to give a presentation on the above matter and how it relates to our business

I understand culpability / harm category when arriving at a range for a fine and what mitigating factors reduce that fine.

What I am unsure on is the custodial sentencing , on reading the definitive guidelines it splits into several parts 3 of them being 

• Organisations - This section makes no reference to custodial sentencing
• Individuals - This does make reference to custodial sentencing
• Corporate Manslaughter - This section makes no reference to custodial sentencing.

Is corporate manslaughter not part of H&S law, but brought about by CPS?

The company where I work has departmental managers and a Site Lead. The site lead answers to the managing director, who answers to the board directors.

So in a situation where there was blatant disregard for H&S resulting in the death of person - it was proven that the board knew about these failings but refused to act / invest which could have prevented it who can potentially be convicted? All of them? Or just the owner? Or the person who could sign the cheque off for investement

It is an area of H&S I'm weak on - I suppose I need to read up on case studies etc..

Any help guidance / reading to sign post me to would be helpful

Many thanks

The crime of Corporate Manslaughter (or Corporate Homicide in Scotland)  was created to make it easier to prosecute a company or other corporation for incidents which lead to someone’s death where the corporate body ie the company could be held culpable for the death.  Previous attempts had been made to apply the common law offense to companies, but the courts had insisted that there had to be a ‘controlling mind’ behind the offense.  This lead to the grossly unfair situation where  a small business run by an individual could be prosecuted as it was obvious where the controlling mind lay. By contrast a large company where responsibility was shared could avoid prosecution as it was difficult to identify where the ‘controlling mind’ was.

The 2005 Act created a new offence  of Corporate Manslaughter which is only applicable to corporations not individuals, who can still be prosecuted for common law manslaughter.

As the law only applies to corporations there is no point in having anything like a custodial sentence under it: you can’t send a company on prison. You can of  course fine the company  and the fine is potentially unlimited. The Sentencing Guidance Council has provided guidance on what sort of fine should be imposed  and  last time I looked the starting point for a fine was £500 000 but this can be adjusted up or down for each case.

This legislation is not H&S law and as such it is not investigated by the HSE but in practice if someone dies in what looks like a workplace accident a joint  investigation is launched by the HSE and the Police. There is an agreed protocol for how this should work.  People will be interviewed jointly by the HSE and the Police who will then look at the evidence and decide which charges should be brought for whom; under the Health and Safety at Work Act  and/or Corporate Manslaughter.

Note that it is important that people understand in what capacity they are being interviewed. They might be interviewed to establish personal culpability, which means the rules under PACE apply and they can not be made to incriminate themselves, but they also might be interviewed on behalf of the company in which case the self incrimination rules would not apply ie they can be expected to dobb in the company.

That means hat one of things that the company needs to think about is if they will pay for the legal defence of employees or just to defend the company.

This is often made worse because the company will pay for senior managers’ lawyers but not for others who feel they have been thrown to the wolves. Of course any self respecting HSE Inspector will tell you that they are not interested, in the small fry, but are aiming for the big fish.  The health and safety manager are even of less interest and is usually thrown back first!

I was involved in 2 corporate manslaughter investigations before leaving my role as a H&S inspector. Im my (limited I agree) experience the police and CPS don’t understand Corporate Manslaughter. They are still looking for the Smoking Gun, i.e an individual to blame. One case was dropped quickly (insufficient evidence) one they spent a year on – then handed back to us to investigate as no individual identified.  The company was fined £1.6M as the new sentencing guidelines applied. It was in our view systemic failures of the management system all the way to the top. The only difference if the police had taken the case is it is likely the verdict would have been manslaughter and not just section 3 HASAW act offence – which may have given the family  some comfort that justice had been done.