The failure of the prosecutions following the Herald of Free Enterprise disaster in 1987 and Paddington Train Crash ten years later have highlighted the difficulties faced by the CPS when attempting to prosecute companies for corporate manslaughter.

The case of R v Adomako sets out the requirements of involuntary manslaughter. In that case, the Court held that a conviction could be sustained on the basis that the defendant had been “grossly negligent” from a largely objective (rather than a subjective) standpoint. Whether the prosecution could satisfy such a test depended on the seriousness of the breach of duty committed by the defendant and all the circumstances facing the defendant when the accident occurred.

In short, had the defendant's conduct fallen below the expected level such as to categorise the negligence as criminal?

The few cases in which a company has been successfully convicted of manslaughter involve cases against a defendant that is a small company, so that it has been possible to discern a “controlling mind” responsible for failing to take steps to avoid the victim’s death. In practice, this has been a managing director, or senior company official, who has a clear connection with the running of the company and the circumstances of the incident that has given rise to the fatality, such as following the Lyme Bay tragedy in 1993. In effect, the prosecution has had to identify a person who could also be prosecuted in his personal capacity in order to secure a conviction.

The judgment of Scott Baker J following the Paddington Train Crash made clear that, notwithstanding the prosecution’s case that a finding of gross negligence could be deduced objectively following Adomako, not all acts of negligence could be categorised as criminal when applied to a defendant company. The Court also refrained from making any comments concerning the possible attribution and aggregation between offenses and breaches across the company, to satisfy the elements of corporate manslaughter. Furthermore, the Court also found that any conviction of corporate manslaughter would still require elements of foreseeability, proximity, fairness, justice and reasonableness.

In response to the apparent inability of the law to punish companies responsible for such tragedies as the Paddington Train Crash, the government resolved to make prosecutions for corporate manslaughter easier. The resulting Corporate Manslaughter and Corporate Homicide Bill is currently awaiting its first reading in the House of Commons and is intended to remedy the difficulty by basing convictions on a system of organisation failure.

An organisation will be guilty of an offence if the way in which its activities are managed or organised causes a person’s death and amounts to a gross breach of a duty owed by the organisation to the deceased .

A gross breach is one that falls “… far below what can reasonably be expected of the organisation in the circumstances”.

Senior management is defined as those persons who play significant roles in:

 “the making of decisions about how the whole or a substantial part of its activities are to be managed or organised, or

 the actual managing or organising of the whole or a substantial part of those activities”

This will allow the prosecution to examine two potentially different groups of managers in a large company structure. The issue is whether the actions of the senior management identified amount to a substantial element of the breach.

A “relevant duty of care” includes: a duty owed by an organisation to its employees; a duty owed as an occupies of premises; a duty owed in connection with the supply of goods or services; the organisation of any construction or maintenance operations; any other commercial activity; and the use or maintenance of any plant, vehicle or other machinery.

The bill also provides further guidance on the meaning of “gross breach”. In particular, the jury must consider whether there has been a failure to comply with health and safety legislation and other guidance relating to the alleged breach and, if so, how serious that failure was and how much risk of death it posed. The jury may also consider “the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure … or to have produced tolerance of it”.

The objective assessment of a gross breach of a relevant duty of care by senior management therefore dispenses with the need to identify a directing mind in order to secure a conviction.

It remains to be seen whether ultimately the Bill will give rise to a significant increase in the number of manslaughter prosecutions. If so, the disproportionate incidence of fatal accidents in the construction industry may result in more frequent prosecutions of companies involved in construction. It may also result in increased costs to insurers. However, the availability of Health & Safety prosecutions (with similar sentences of unlimited fines) may remain the preferred prosecution route and the Act may only be applied in the type of high profile case, like Paddington, in which public opinion will push the CPS into seeking a conviction for manslaughter.