Corporate manslaughter - Risk assessment, training and defence

Publication September 2015


Corporate manslaughter – being prepared

The police will investigate any fatality in the UK.

Any company can be prosecuted in the criminal courts if its senior management has behaved so negligently in respect of the health and safety of an employee, a contractor or visitor, that the company itself should be held criminally responsible for the fatality. Individual negligence by senior managers will be aggregated to prove corporate liability.

The health and safety culture of the company across its operations will be investigated by the police team. Evidence of a bad corporate culture will be used in evidence in any court prosecution.

Fines against the company will start at £500,000 and rise with any aggravating features. Corporate blindness to health and safety or evidence of a culture of indifference will multiply the figure many times over. The company may be required to publicise its conviction. Directors can be disqualified.

There will often be parallel criminal prosecutions against individuals within senior management carrying imprisonment or fines. Whether senior managers are interviewed about the company’s operations or about their personal involvement in a fatality, it will also almost certainly be the first time that they are subject to police interrogation.

Training and preparation are key to managing the process to ensure the best possible outcome for both individuals and the company.

Training | risk assessment | managing the investigation

We can:

  • undertake an audit and risk assessment to identify where the company currently fails to demonstrate good health and safety culture and awareness
  • deliver a package of proposals to the company for systems and controls of senior management to avoid corporate and individual criminal liability
  • train senior managers from board members down in police investigating techniques in a “real life” setting
  • in the event of a fatality, defend your company, board members or senior managers during an investigation and any subsequent prosecution.

Auditing risk areas

After a fatality, the police investigators will search for evidence of negligence by senior management and for bad health and safety culture in the company. If these have not been identified by the company in advance and dealt with, then senior management and the board will become embroiled in a lengthy and disruptive corporate manslaughter investigation by police with a significant increase in the likelihood of prosecution.

When the police (with HSE) investigate a fatality, they are able to search for evidence of “bad culture”. It is essential that a company is seen to have addressed any instances of bad practice or poor procedures.

“Turning a blind eye” will attract a prosecution.

We can:

  • carry out a high level review of the company’s, structure, procedures and practices to identify any risk areas
  • investigate any operating areas that are of concern
  • give you the remedies and advise on implementation.

Your contractors should also have these policies and risk assessments. If an employee of a contractor is killed on your premises, even if they are being supervised by the contractor, you must show that you have assured yourselves of the contractor’s compliance in health and safety.

“Real life” training

Senior managers will be subjected to police investigation and questioning. Training and preparation are key to managing the process for the best possible outcome for individuals and the company.

PowerPoint presentations have their place but there is nothing like the real thing to focus the mind. We have extensive experience of investigations into fatalities by the police and HSE.

Drawing on this experience and the methods used by the police, we provide as close to a “real life” experience of an interview as possible:

  • we provide background and documents and a fictional tailor made scenario to work with
  • using the scenario, each board member and senior manager undertakes an interview in police-style conditions on tape with Norton Rose playing the role of the investigating police officers
  • the Director or manager is questioned on the difficult issues that always arise in corporate manslaughter interrogation
  • we then provide feedback to the individual and, generically, to the company with advice on additional systems, if necessary.

Managing the police and HSE investigation

A police investigation into a company is massively disruptive and lasts many months, if not years. The style of the investigation is entirely different to a regulatory investigation. The company must manage this to cause minimum disruption to its business and to bring the investigation to a conclusion as swiftly as possible.

We can:

  • advise on management team processes to deal with the external and internal investigation
  • control the flow of information and documents requested by the police or HSE
  • provide legal privilege throughout the investigation
  • represent the company and, if appropriate, key individuals during the investigation.

The internal investigation

A company will want to undertake its own investigation into a fatality. Whilst an investigation by the authorities is underway, this can be a difficult task to manage. We can undertake the investigation for you, provide legal privilege to certain material and provide answers.

In our value added services, we focus on the business. We know just how damaging an investigation can be to morale and how draining this can be to a company’s operations. Handled wrongly, a police investigation can bring production to a halt. Boards can be paralysed.

We have the knowledge base and resources to analyse the substantial volumes of documents that must be scrutinised for both an internal and external investigation.

And if, despite everything, there is a prosecution …

Defence

We have specialised expert criminal experience in defending criminal prosecutions from the time that a summons is issued against the company through to the jury trial, and if necessary, to appeal.

Global liability

The UK courts have jurisdiction to investigate and prosecute companies where fatalities occur in the UK (and UK ships, aircraft and oil and gas offshore platforms).

We are also able to advise companies where fatalities have occurred abroad. Liability on companies for fatalities varies across Africa, Asia Pacific, Australasia and the US. We are able to carry out investigations using global norms and standards and to advise on liability in the various jurisdictions worldwide.

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