GOSHA

This part deals with the circumstances in which a corporation or limited company (“a company”) can be prosecuted for manslaughter committed in the course of its operations. There is considerable public concern surrounding cases of corporate manslaughter; the topic therefore merits particularly close attention.

A company operates through the human agencies of its directors, managers and employees. For present purposes, a company can only be identified with an act, or omission, by one of its controlling officers acting within the scope of his office or authority.

It is difficult to envisage circumstances in which a company could be convicted of “voluntary manslaughter” (where all the elements of murder are present but the crime is reduced to manslaughter by means of a special defence) or involuntary manslaughter by means of an unlawful act.

Corporate manslaughter will, therefore, normally be considered in the context of involuntary manslaughter by means of gross negligence.

For corporate liability generally.

In (P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 72) Mr Justice Turner ruled that a company may be properly indicted for manslaughter. That case however, ended in the acquittal of the defendant company because the Crown could not show that a 'controlling mind' had been grossly negligent.

Subsequent convictions of companies for the offence of corporate manslaughter have been infrequent. Three rare examples are: ( R v Kite and OLL Ltd (the “Lyme Bay” case, Winchester Crown Court, 8 December 1994, unreported), R v Jackson Transport (Ossett) Ltd, and R v Roy Bowles Transport Ltd, Central Criminal Court 10 December 1999, unreported).

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The House of Lords laid down a four stage test for involuntary manslaughter by means of a grossly negligent act or omission in (R.v. Adomako (1995) 1 AC 171):

Consideration of those questions will involve the application of legal principles which are usually regarded as forming part of the civil law of tort, not the criminal law.

There are a wide variety of circumstances in which consideration may need to be given to indicting a company for manslaughter arising out of its operations. The victims of fatal accidents may be employees or customers of the company in question or members of the public. Common examples are:

A company may be a potential defendant by reason of its capacity, for example, as an employer, a supplier of goods, or as a contractor. In appropriate cases, therefore, you should consider whether the company itself - in addition to any individuals - should be prosecuted for manslaughter but this depends on the following evidential requirements.

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A company acts through the human agency of its directors, managers and staff. In order to convict a company of manslaughter it must be shown that a causal link existed between a grossly negligent act or omission by a person who is the “controlling mind” of the company and the immediate cause of death.

The principle assumes that there are certain directors or senior managers of the company whose acts and states of mind can properly be regarded as those of the company itself. Those persons are to be identified as those who are entrusted with the powers of the company. Accordingly, the conviction of a company for manslaughter by gross negligence in the absence of evidence establishing the guilt of an identified human individual for the same crime is not possible.

Usually a person can only be a controlling mind if they are a director or other superior officer, carrying out the functions of management, but if the board has delegated part of their functions of management, with full discretion to act independently, then in such circumstances the delegate can be considered a controlling mind (Tesco v Nattrass (1971) 2 All ER 127).

It will be necessary to determine whether an individual is a controlling officer and to establish a causal link between such a person and a grossly negligent act or omission which has caused death. The prosecution will need to show that an act, or omission, by a controlling officer created a dangerous situation and whether proper precautions were then taken to guard against that danger. The larger and more diffuse a company's structure, the more difficult it will be to attribute grossly negligent acts or omissions committed in the course of the company's operations to a controlling officer and, therefore, to the company itself.

It must be noted that it is not possible to 'aggregate' the negligence of individuals, even if each is a controlling mind, in order to arrive at gross negligence. The prosecution must be able to prove that at least one controlling mind is guilty of manslaughter before corporate manslaughter can be considered.

Conversely, the smaller the company the more likely it will be that such a causal link can be established, as in the successful prosecutions for corporate manslaughter referred to above.

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Fatal road accidents involving road haulage or transport companies cause much public anxiety. In such cases you should apply the above principles when considering both who, and what, to charge. The House of Lords confirmed in R v Adomoko that involuntary gross negligence manslaughter includes 'motor manslaughter' but as section 1 Road Traffic Act specifically covers causing death by dangerous driving, unless the car has been used as a weapon, the charge against the individual driver should usually be one under the Road Traffic Act legislation.

Where death has resulted from a road traffic accident caused by a defective vehicle you may need to consider whether the company, through one of its controlling officers, was responsible for any lack of maintenance of the vehicle concerned.

A transport manager, for example, might be identified as a “controlling officer” of the company under the principle in Tesco v Nattrass. If he has been grossly negligent with regard to the maintenance of a vehicle under his care both he, and the company, may be prosecuted for manslaughter, if a fatal accident has occurred because of the dangerous condition of that vehicle. See the decision of the Divisional Court in R v CPS ex parte Waterworth (1.12.95; unreported). A transcript is available at the HQ Library.

If an employer, knowing or believing a vehicle to be in an unsafe condition, has ordered an employee to drive the vehicle and a fatal accident then occurred, consideration should be given to a charge of counselling or procuring death by dangerous driving. In such circumstances, however, it is essential to prove that the driver committed the principal offence, i.e. that he was, or ought to have been, aware that the vehicle was unsafe when he drove it. (See R v Noel Martyn Loukes (1996) 1 Cr App R 444 and R v Millward (1994) Crim L R 527).

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The Health and Safety Executive (HSE) is a statutory body established under the Health and Safety at Work Act 1974 (HSWA). It is responsible for making adequate arrangements for the enforcement of health and safety legislation, and has a role in investigations which follow a work-related death.

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A Protocol entitled 'Work-Related Deaths : A Protocol for Liaison' has been agreed between the HSE, Association of Chief Police Officers (ACPO) and The CPS setting out the principles for effective liaison in such circumstances.

The principles underlying that document include:

The following points contained in the Protocol should be noted:

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The Government is reviewing the law relating to corporate manslaughter with a view to creating a new offence. In the meantime, you should continue to apply the above principles when considering a charge of corporate manslaughter and you will be advised on changes to the substantive law when they occur. Even if it is not possible to show that a company has been grossly negligent because there is no controlling mind, offences under other legislation may have been committed.

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