A series of recent disasters has been followed by enquiries that found corporate bodies seriously at fault. We all remember the loss of 187 lives when the Herald of Free Enterprise capsized off Zeebrugge, the Piper Alpha oil platform disaster with 167 fatalities, and the Clapham rail crash in which 35 people died.

No prosecutions have been successfully brought.

The government and Health and Safety Commission have announced targets to reduce the number of work-related deaths, ill health and injury in Great Britain. Fatal and major-injury accidents are to be reduced by 10% by the year 2010 – that is 30,000 fewer cases on current figures. These targets will be implemented by:

  • occupational-health strategy
  • directors' code of practice
  • abolition of crown immunity
  • tougher penalties.

    The Heath and Safety Executive liaises with police to decide if any work-related death would justify a charge of manslaughter. However, the width of the present offence can cause difficulties for judges because manslaughter ranges in gravity from the borders of murder to those of accidental death. It is difficult to strike the right balance with regard to sentence.

    New offences
    The Law Commission has made recommendations regarding criminal liability of those who cause death unintentionally. They propose the creation of two separate new offences for unintentional killing – “reckless killing” and “killing by gross carelessness”.

    A person commits reckless killing if his or her actions cause the death of another. They are aware of a risk that their conduct would cause death or serious injury. It is unreasonable for him or her to take the risk, having regard for the circumstances as he or she knows or believes them to be.

    A person commits killing by gross carelessness if his or her conduct causes the death of another. A risk that his or her conduct will cause death or serious injury would be obvious to a reasonable person in his or her position. He or she is capable of appreciating that risk at this material time (but did not in fact do so). Either his or her conduct falls below what can reasonably be expected in the circumstances, or he or she intends by his or her conduct to cause some injury or is aware of and unreasonably takes the risk that it may do so. The conduct causing (or intending to cause) the injury constitutes an offence.

    The Law Commission's recommendations, now in the form of a draft bill, propose a special offence of “corporate killing” caused by “management failure”, which broadly corresponds to the proposed offence of “killing by gross carelessness”.

    Change is on the way
    Corporations, local authorities and educational institutes all fall within the category of potential defendants in respect to “corporate killing”.

    If there is sufficient evidence, an individual officer could also be charged with one of the new manslaughter offences – “killing by gross carelessness” (maximum penalty ten years' imprisonment) or “reckless killing” (maximum penalty life imprisonment).

    Even without these reforms, which are likely to become legislation later this year, change is on the way. There is an unstoppable movement towards using the full force of the criminal law against companies, authorities and officers where death or injury is caused by serious negligence.

    Risk-management strategies are essential to avoid putting the authority and officers at risk of severe criminal sanctions.

  • Laurence Brown is a solicitor and chartered loss adjuster at Halliwell Landau's Manchester office.

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