Corporate manslaughter has to show negligence, says David Faithful

A great deal of attention is still currently being given to the topic of corporate manslaughter in light of the ongoing Hatfield prosecutions.

In addition, the prospect of the new offence of corporate killing finally hitting the statue books after the general election seems certain.

The reality of corporate responsibility is currently very different from the hype that surrounds the management of occupational road risk and the risk of prosecution resulting from a fatal road traffic accident.

Although prosecutions do occur, they are still few and far between.

The Court of Appeal recently considered the issue of the duty of care owed to another individual in the case of the gross negligence manslaughter prosecution in Regina v Willoughby, [2004].

Manslaughter by gross negligence in the course of an unlawful act forms the basis of any corporate manslaughter prosecution arising from a driving offence.

Although this was not a prosecution arising from driving, the three Appeal Judges hearing the case took the opportunity to debate the current law and the necessary test to be applied to direct a jury hearing such a case.

It was decided that where a defendant was charged, it was a question for the jury rather than the judge trying the case to find whether the defendant owed the victim a duty of care once the evidence establishing a duty of care had been established.

Put in layman's terms, if the prosecution proved that a duty of care existed at the time of an accident, the only requirement upon a jury was to consider whether the breach of the duty of care caused the death and whether that breach amounted to a crime.

Occupational driving
Applying this logic to an occupational driving case, for a successful corporate manslaughter conviction, the prosecution would have to prove that a fleet manager owed a duty of care to members of the public who may come into conflict with one of their vehicles on the road.

In light of the HSE guidelines on the management of occupational vehicles, it would be a relatively simple matter to establish that the guidelines created a duty of care on the part of the fleet manager to both the fleet driver and the public, and that any breach of the guidelines would have resulted in a breach of that duty.

Once the existence of duty has been established, it is then a matter for the jury to decide whether the breach caused the death.

If the accident was caused by a mechanical defect, fatigue, a mobile phone or one of the other known common causes of work related accidents then it is difficult to comprehend how a juror would not link the fatality to the circumstances leading up to the accident.

The jury would then need to consider whether the breach of the duty amounted to a crime.

This would be measured by public perception of the level of control that was or could have been exercised by the fleet manager over the condition of the vehicle and driver at the time of the accident.

In particular, should the fleet manager or company be punished for the part that they played in the accident.

The outcome of the Hatfield prosecutions are not likely to be known for some months. It can only be hoped that firmer guidelines as what the prosecution need to establish to secure a conviction for corporate manslaughter will be an outcome.

Until then, the assessment of responsibility is ultimately going to fall into the hands of a jury, a somewhat unpredictable outcome for such a serious offence.

The warning to fleet managers continues to be 'manage the risk'.

' David Faithful is a partner at law firm Clarke Willmott