LARSOA Corporate Manslaughter

8/7/2019 LARSOA Corporate Manslaughter

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The Transafe Network

Corporate ManslaughterCorporate Manslaughter

& Corporate Culpable Homicide& Corporate Culpable HomicideBackground to the LegislationBackground to the Legislation

Saul JeavonsSaul JeavonsDirectorDirector

The Transafe Network LimitedThe Transafe Network Limited


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Corporate Liability - why a new offence?

Criminal offences may be committed not only by an

individual, but also by a company

Under the law, a corporation is defined as a legal

person and therefore be criminally liable for strict

liability offences

HOWEVEROrganisations could only be convicted

of manslaughter if a directing mind at the top of the

company (such as a director) was also found

personally liable


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Corporate Liability - why a new offence?

SO if the directing mind is innocent (or cannot be

identified), so is the company

Who is a directing mind?

What did this mean in practice?


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Herald of Free Enterprise

7:05 p.m. March 6th 1987

Townsend Thoresen ferry sailed at with a crew of 80

and carrying 459 passengers, 81 cars, 3 buses, and

47 trucks

The ferry reached 18.9 knots (20 mph) 90 seconds

after leaving the harbour

Water began to enter the car deck in large quantities.

The resulting free surface effect destroyed her

stability


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Within seconds, at 7:28pm, the ship began to list 30degrees to port. The ship briefly righted herself

before listing to port once more, this time capsizing

The entire event took place in less than a minute.

The water quickly reached the ship's electricalsystems, destroying both main and emergency

power and leaving the ship in darkness


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The ship ended on her side half-submerged inshallow water 1km from the shore

A turn to starboard in her last moments and then

capsizing onto a sandbar prevented the ship from

sinking entirely in much deeper water

A nearby dredger noticed the Herald's lights

disappear, and notified the port authorities

A rescue helicopter arrived within half an hour,shortly followed by assistance from the Belgian

Navy


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The disaster resulted in the deaths of 193 people.

Most of the victims were trapped inside the ship and

succumbed to hypothermia because of the frigid

water. The death toll was limited by the Navy rescue

operation

It was confirmed that the ferry left port with her bow

doors open

The assistant bosun, who was directly responsible

for closing the doors, was asleep in his cabin,having just been relieved from maintenance and

cleaning duties


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The bosun noticed that the bow doors were still

open, but did not close them as he did not see that

as part of his duties

It seems that the captain was to assume that the

doors were safely closed unless told otherwise, but

it was nobody's particular duty to tell him. The

written procedures were unclear

The chief officer, responsible for ensuring door

closure, testified that he thought he saw theassistant bosun going to close the door. The chief

officer was also required to be on the bridge 15

minutes before sailing time


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Staff had warned the practice was an accident

waiting to happen

Corporate management had rejected information

displays that captains had recommended to prevent

this type of accident and in management of ballast

A public inquiry castigated Townsend Thoresen and

identified a "disease of sloppiness" and negligence

at every level of the corporation's hierarchy

The Townsend Thoresen brand had been shown

around the world. P&O quickly decided to rebrand

the company as P&O Ferries and repaint their fleet's

red hulls in navy blue


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The Crown Prosecution Service charged P&OEuropean Ferries with corporate manslaughter in

1989 and seven employees including two directors

with manslaughter

The trial collapsed in its early stages when the judge

ruled there was insufficient evidence against any

director or senior manager

However, the case set a precedent for corporate

manslaughter being legally admissible in an English

court.


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Lyme Bay Canoe tragedy

10 a.m. March 22nd 1993

8 pupils, 1 teacher, 2 instructors

Teacher got into difficulties, one instructor attended

to him, the other rafted the pupils together.

The raft rapidly drifted away from the teacher and

instructor, and lost sight of them.

The pupils did not have spray decks. As the kayaks

drifted away from the coast, the wave heightincreased and one by one, the kayaks were

swamped until all nine individuals were in the water.


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Group due back for lunch at 12 noon

Emergency services were not asked to help

until 15:30.

The teacher and one instructor who remained in their

kayaks, and were rescued by the inshore lifeboat at

17:31.

The rest of the group were picked up by rescue

helicopter between 17:40 and 18:40.

Four of the pupils died of hypothermia


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Devon County Council report:the immediate cause of the tragedy was, the

lamentable failure of the St Alban's Centre to

organise and supervise the canoeing activity, to

employ suitable staff and to have prepared and

operated sensible and pre-determined procedures

when difficulties arose."

The parent leisure company OLL was prosecuted in

1994. The company running the trip had only two

directors and Peter Kite, the managing director, was

considered to be the embodiment of the company

and its directing or controlling mind.


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Some months before the tragedy, Joy Cawthorneresigned from the centre after her warnings that a

tragedy was waiting to happen were ignored. Her

evidence helped lead to the first ever conviction for

corporate manslaughter in the UK in December 1994.

Kite was sentenced to three years imprisonment

(reduced to two years on appeal) and the company

was fined 60,000.

The case lead to the creation of the AdventureActivities Licensing Authority, who regulate outdoor

activity provision for young people.


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Prosecutions

The Hatfield rail crash killed four and injured 102people.

In a prosecution against Network Rail and Balfour

Beatty, the companies were cleared before the case

came before the jury.

The judge decided there was insufficient evidence to

proceed.


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[The Crown] put their case this way: what senior

management in any corporation must do is to set the

agenda and set the strategy and that does not mean

saying to people: you must try harder; it means

ensuringeffective action is taken. That may mean

radical steps. It depends on the situation at the time

on the ground.

Hatfield derailment prosecution

Central Criminal Court

Mr Justice Mackay

1st September 2004

Senior Management Duties


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The defence for their part point out that in a

corporate structure of this size and this type, there

is a point at which a senior manager cannot

reasonably foresee all the consequences of his

management acts. He can only act through thelayers of management and staff which lie below

him. At its highest, the case against [Gerald

Corbett] amounts to no more and no less than

failing to oversee the operation of management

control systems.Hatfield derailment prosecution

Dismissal Ruling

Mr Justice Mackay

1st September 2004

Size matters


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Mr Corbett's own contemporaneous statementsunderline that safety came before performance.

[Another senior director] said that for every 5

minutes spent [in board meetings] discussing

performance, 10 or 20 were spent discussing safety.

[Senior engineers] say that advice from theprofessional heads was always accepted. The HSE

concluded that there was no evidence that

commercial considerations outweighed safety

considerations. Dupont concluded that there was

no doubt about the senior echelons' commitment to

safety. Hatfield derailment prosecutionDismissal Ruling

Mr Justice Mackay

1st September 2004

Show that safety is important to you


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Prosecutions

By 2003:

Only six successful corporate prosecutions all

against small companies.

Only 10 company directors successfully prosecutedand only four proprietors.

The penalties open to the courts are unlimited fines

and jail sentences.

In practice, most sentences were suspended and thefines small.

Three years was the maximum period of

imprisonment, and 25,000 the greatest fine.


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So

Shaun will outline the change in legislation, and theimplications for local authorities

But a thought to ponder

How does this affect your involvement in WorkRelated Road Safety? And how shouldit?

Tel: 07789 395347

E-mail: [email protected]

LARSOA Corporate Manslaughter

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