The Corporate Manslaughter Act 2007 came into force in early 2008, but there remain real doubts as to its force and applicability.
So far the Act has only been used to prosecute two small companies (Cotswold Geotechnical Holdings last year and JMW Farms in May this year), while it is actually designed to punish offences by large companies with complex management structures where there is no “controlling mind”.
However, following the death of a 24-year-old fashion student last October in a collision with a lorry at a King’s Cross junction, it may be put to the test for the first time, though no action has been taken so far.
In this article, Anil Rajani and Henry Campbell-Smith from IBB Solicitors consider what might happen if Transport for London (TfL) was pursued under the Act.
The junction where the cyclist was killed had long been identified as a particularly dangerous stretch of road, with transport consultants advising the capital’s highways authority, TfL) that the junction was an “absolute priority” in terms of safety conscious redesign.
There was also a report on pedestrian safety in 2008 which warned that “casualties were inevitable” at the junction. But nothing was done by TfL to tackle the roundabout and now a woman has been killed. So could TfL be guilty of corporate manslaughter and what impact would such a verdict have on the fleet industry?
TfL has the sort of complex management structure that the Act was designed to tackle. It is also directly involved in the maintenance of London’s roads, a dangerous environment where deaths are not infrequent and often difficult to blame on any one party. A conviction against TfL would underline the Act as one to be taken very seriously.
According to the Act, an organisation is 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 relevant duty of care owed by the organisation to the deceased”. There are many difficulties inherent in the Act which would be critically tested by a case against the TfL. These are outlined below:
Causes a person’s death
This term is fraught with problems as it requires a chain of circumstances between the mismanagement and the subsequent death – something which will rarely be clear cut. If TfL was to be found guilty under the Act, it would strongly suggest that this is a hurdle that can be overcome.
A gross breach
The Act states that a gross breach falls “far below what can reasonably be expected of the organisation in the circumstances”. This sounds easy enough, but consider a situation involving TfL when a potential breach will likely have been committed by many people making minor errors – when do the minor breaches become gross?
It is not at all clear when a breach will amount to a gross breach. However again, if a conviction were to stick against TfL, you could count this as an issue largely resolved.
A relevant duty of care
The corporate manslaughter offence amounts to a serious criminal charge and must be proved beyond all reasonable doubt.
However, the duty of care requirement suggests that contributory negligence (a key factor in any duty of care case) may feature in prosecutions under the Act.
Contributory negligence means there is an apportioning of blame, but there cannot be apportioning of a criminal charge; you are either guilty or not.
In reality, we consider that TfL may be one step too far for the Act at this moment, as acknowledged by Det Chief Insp John Oldham, head of Scotland Yard’s Road Death Investigation Unit, when he said “ is a badly drafted Act; there are loopholes everywhere”.
CPS considers 50 cases for prosecution
The Government’s top lawyer has admitted that 50 cases are being considered for prosecution under the Corporate Manslaughter Act.
Attorney General Dominic Grieve made the announcement during House of Commons questions.
Health and safety lawyer Michael Appleby, who advises Fleet Support Group, said: “I am certain one or two cases must be linked to work-related road safety.”
Grieve also confirmed that not all investigations resulted in corporate manslaughter (CM) charges.
Of five CM cases investigated by the CPS, four resulted in charges of gross negligence manslaughter brought against individuals and health and safety charges against the companies.
About the authors
Anil Rajani is a partner with IBB Solicitors and specialises in corporate fraud and regulatory cases in London and the South East. He regularly acts for company directors and is recommended in the Legal 500. Henry Campbell-Smith is a trainee in the Business Investigations and Governance seat with IBB Solicitors.