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Wednesday, 12 October 2016

Corporate Manslaughter



Corporate Manslaughter and Corporate Homicide Act 2007 is a landmark in law.  For the first time, companies and organisations can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care.

In February 2016 Yousaf Khan, the owner of Autumn Grange in Nottingham, was jailed for gross negligence manslaughter over the death of Ivy Atkin which occurred in November 2012. 

Ivy Atkin, who was 86 and had dementia, weighed just 25kg (3st 13lbs).

An inspector told an inquest into her death there were "widespread" problems at the home.  There was systematic neglectful care, discrimination and further abuse taking place.

Linda Hirst, from the Care Quality Commission (CQC), said Mrs Atkin was not the only resident being neglected.  "The care of people, including Ivy Atkin, who I witnessed directly, they were receiving very poor care," she said.

Mr Khan was sentenced to 3 years and 2 months at Nottingham Crown Court and his firm Sherwood Rise Ltd was fined £300,000 for Corporate Manslaughter.

This was the first case of its kind in England.

But what is Corporate Manslaughter?  How does it affect our families and loved ones?  And what does it mean for our Care Homes and Care Staff?

Corporate Manslaughter

The Corporate Manslaughter and Corporate Homicide Act 2007 is a landmark in law.  For the first time, companies and organisations can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care.

Prior to 6 April 2008, it was possible for a corporate entity, such as a company, to be prosecuted for a wide range of criminal offences, including the common law offence of gross negligence manslaughter.

However, in order for the company to be guilty of the offence, it was also necessary for a senior individual who could be said to embody the company (also known as a 'controlling mind') to be guilty of the offence.  This was known as the identification principle.

On the 6 April 2008, the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) came into force throughout the UK.  In England and Wales and Northern Ireland, the new offence is called corporate manslaughter, and in Scotland it is called corporate homicide.

What do companies and organisations need to do to comply?

Companies and organisations that take their obligations under health and safety law seriously are not likely to be in breach of the new provisions.  Nonetheless, companies and organisations should keep their health and safety management systems under review, in particular, the way in which their activities are managed or organised by senior management.

Will directors, board members or other individuals be prosecuted?

The offence is concerned with corporate liability and does not apply to directors or other individuals who have a senior role in the company or organisation.  However, existing health and safety offences and gross negligence manslaughter will continue to apply to individuals.  Prosecutions against individuals will continue to be taken where there is sufficient evidence and it is in the public interest to do so.

What does it mean for Our Families and Loved Ones?

Unfortunately, if you have concerns over whether this applies to you then you’ve already been faced with serious systematic failures, neglect and abuse in care.  This legislation only covers deaths within care from 6 April 2008, deaths previous to this date will still be covered by the previous law but very few ever made it to court.

The Act, which came into force on 6 April 2008, clarifies the criminal liabilities of companies including large organisations where serious failures in the management of health and safety result in a fatality.

The Ministry of Justice leads on the Act and more information is available on its Corporate Manslaughter and Corporate Homicide Act 2007 webpage.

What does it mean for Individual Workers?

HSE welcomes and supports the Act.  Although the new offence is not part of health and safety law, it will introduce an important new element in the corporate management of health and safety.

Prosecutions will be of the corporate body and not individuals, but the liability of directors, board members or other individuals under health and safety law or general criminal law, will be unaffected. 

And the corporate body itself and individuals can still be prosecuted for separate health and safety offences.

Essentially this means that Care Staff, found in breach of Health & Safety and Safeguarding are now individually liable and can be prosecuted.

Elements of the Offense

The following needs to be proved:

  •  the defendant is a qualifying organisation;

  • the organisation causes a person's death;

  • there was a relevant duty of care owed by the organisation to the deceased;

  • there was a gross breach of that duty;

  • a substantial element of that breach was in the way those activities were managed or organised by senior management; and

  • the defendant must not fall within one of the exemptions for prosecution under the Act.

Therefore, the reviewing lawyer will have to consider how the fatal activity was managed, or organised, throughout the organisation, including any systems and processes for managing safety and how these were operated in practice.

A substantial part of the failure within the organisation must have been at a senior management level
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