I recently attended a training session in London with a top legal team to find out what has been happening on Corporate Manslaughter over the last 5 years.  From the limited number of cases that have made it to the court room it would appear that this once heralded piece of legislation has failed to make much impact.

I felt it important to find out why and to see if things might start to change and where from a legal perspective our clients might be vulnerable to potential charges.

The reason for so few prosecutions making it to court was discussed and it was said that one reason is that the Police and CPS Police tend to struggle with the concept of risk assessment.  The HSE would assist here but it’s down to the Police to present the case to the CPS.  Another reason cited was that the CPS are badly under resourced and tend to be frightened to make the decision to prosecute because of the cost involved.

Whilst a case is being investigated and decisions are made regard prosecution (which can often take a couple of years), this hangs over the business and the individual managers and directors involved. What was made clear is that this tends to result in putting on hold life and potential changes in the business.  The CPS currently have over 50 cases to decide whether to proceed or not.

Although Corporate Manslaughter is directed at the business and not the individuals involved; it can often be the case that managers and directors are also investigated to determine if other health and safety charges should be brought. We were reminded that the HSE policy set in 2009 is as follows:

The HSE should identify and prosecute or recommend prosecution of individuals if they consider that a prosecution is warranted, AND should consider the management chain and the role played by individual directors and managers, where the inspection reveals the offence committed was with the consent or connivance or to have been attributable to neglect on their part.

It was said that although much less than 100 managers are prosecuted; there are many, many more who are investigated, and this process is very stressful.

When the regulations first came out there was a concern expressed by legal advisors that the weakness of many businesses would be a failure to manage road-based travel risk but to date this has not happened.  We asked the lawyers “where should our clients be concerned?”,  and it was again said that many would be most vulnerable in relation to driving on company business as its often not properly managed by businesses.  It was said that a potential exposure to risk is having a policy but not following it (e.g. mobile phone use, driver hours etc).  Here a business would likely be investigated for failure to properly implement its own policy; however, for a charge of Corporate Manslaughter to be brought, there has to be a GROSS breach.

A case was discussed where a Quarrying business had a policy with prohibited hands free phone use. A worker was late and was contacted by phone by his Regional Manager who quickly realised that he was driving but carried on with conversation for 2.5 minutes.  The call only stopped when the worker had a road accident and died.  It was also identified that the Regional Manager had previously seen the worker using a non hand-free phone when driving.

The HSE suggested a S37 prosecution under the HSWA but the CPS decided not to pursue; however he was fortunate as he could easily have terminated the call and carried on when employee was safely on site.  In this case his defence had been able to identify the local authority had not gritted the roads so a corporate manslaughter charge was not taken against the business.

Another area of risk is the use of contractors; here a business should look at how selection is made and how monitoring is managed.

We will certainly be advising our clients to take another look at their policies and identify if what is in them is being complied with or can sensibly be applied; if not, then the policy should be changed.