tag:theconversation.com,2011:/ca/topics/corporate-manslaughter-14949/articlesCorporate manslaughter – The Conversation2023-10-05T14:52:27Ztag:theconversation.com,2011:article/2150772023-10-05T14:52:27Z2023-10-05T14:52:27ZLucy Letby investigation: UK corporate manslaughter cases tend to be complex and can take years to reach a finding<p>Police have launched a corporate manslaughter investigation at the Chester hospital that employed Lucy Letby, a former nurse <a href="https://news.sky.com/story/lucy-letby-baby-murders-police-launch-corporate-manslaughter-investigation-12976571">recently convicted</a> of murdering seven babies in the hospital’s neonatal unit in 2015 and 2016.</p>
<p>Corporate manslaughter charges can be brought against organisations that have been grossly negligent, resulting in death. They can be difficult to prove – particularly if an organisation is large and complex, like an NHS Trust – and so investigations often don’t result in prosecution. For example, prosecutors said the evidence did not support a corporate manslaughter charge in relation to the <a href="https://www.bbc.co.uk/news/uk-england-london-50212531">2016 Croydon tram crash</a> which killed seven people. </p>
<p>Investigations are also typically complex, taking many years to complete. A charging decision has still not been made in relation to the <a href="https://theconversation.com/grenfell-tower-criminal-charges-delayed-but-that-doesnt-mean-there-wont-be-justice-113215">2017 Grenfell Tower fire</a>, which claimed 72 lives.</p>
<p>Each investigation must establish that the level of care the organisation gave the victims fell far short of what could reasonably be expected. The prosecution would also have to prove that the organisation’s senior management played a substantial role in the death. This would be a key part of the police investigation.</p>
<p>There have been more than 30 corporate manslaughter convictions since the offence was introduced in 2008, but an NHS Trust has never been convicted. In 2016, a <a href="https://www.theguardian.com/society/2016/jan/28/frances-cappuccini-caesarean-death-trial-collapses">case against Maidstone and Tunbridge Wells NHS Trust</a>, in relation to a woman who died following a C-section, collapsed. The judge said the prosecution’s case was flawed and that it had failed to establish the trust’s gross negligence.</p>
<p>The offence is <a href="https://researchportal.northumbria.ac.uk/en/publications/the-corporate-manslaughter-and-corporate-homicide-act-2007-a-re-e">more commonly used</a> to prosecute companies for serious management failures when a worker is killed on the job. For example, the UK’s first corporate manslaughter conviction, of <a href="https://www.bbc.co.uk/news/uk-england-gloucestershire-12491199">Cotswold Geotechnical Holdings in 2011</a>, resulted in a fine of £385,000. The case was brought after an employee died when a trench collapsed on him while he was taking soil samples.</p>
<h2>Potential penalties</h2>
<p>The main penalty for corporate manslaughter is a fine. There is no cap on the amount a judge can impose, and some cases have resulted in fines of more than £1 million. In 2022, a <a href="https://www.bbc.co.uk/news/uk-england-birmingham-60877433">recycling company was fined £2 million</a> for the corporate manslaughter of a worker at its plant in 2017. The company had been warned before the death about the danger of the absence of safety gates on the piece of machinery that caused the accident.</p>
<p>Judges use <a href="https://www.sentencingcouncil.org.uk/offences/crown-court/item/corporate-manslaughter/">sentencing guidelines</a> to decide the appropriate amount to fine an organisation. Typically, the larger the organisation, the larger the fine. NHS Trusts are normally very large organisations. Fines for larger firms could be as much as £20 million. But for public bodies such as an NHS Trust, the fine would normally be substantially reduced if it would have a significant impact on the provision of its services.</p>
<p>Judges can also impose a publicity order when organisations are found guilty of corporate manslaughter. This means requiring the organisation to publicise the details of its conviction at its own expense, for example in the local press and also on its website.</p>
<p>In 2015, for example, <a href="https://www.kingsleynapley.co.uk/insights/blogs/criminal-law-blog/publicity-order-and-prison-sentence-in-latest-corporate-manslaughter-case">a building firm was fined £200,000</a> and required to advertise the facts of its conviction through a half page ad in a local newspaper and a notice on its own website. </p>
<p>An organisation might be just as worried about bad publicity as it is about a fine. The judge may decide a publicity order is a waste of time in a high-profile case such as the one against Letby’s former employer, the Countess of Chester Hospital, however.</p>
<p>In this case, once the police have finished the investigation, they will hand the file over to the Crown Prosecution Service to decide if there is sufficient evidence to prosecute. </p>
<p>Whatever the decision, it is unlikely to be made any time soon based on the examples of corporate manslaughter cases in the UK to date.</p><img src="https://counter.theconversation.com/content/215077/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Victoria Elizabeth Roper does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The often long and complex nature of corporate manslaughter investigations means that prosecutions can take years, if they happen at all.Victoria Elizabeth Roper, Associate Professor in Law/Solicitor, Northumbria University, NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1132152019-03-12T11:27:04Z2019-03-12T11:27:04ZGrenfell Tower: criminal charges delayed, but that doesn’t mean there won’t be justice<figure><img src="https://images.theconversation.com/files/263126/original/file-20190311-86690-zeyozo.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C2986%2C1994&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The campaign continues.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-united-kingdom-june-21-2017-664657924">Jane Campbell/Shutterstock.</a></span></figcaption></figure><p>In the aftermath of the Grenfell Tower fire, which killed 72 people, blame for the tragedy was laid at the feet of <a href="https://theconversation.com/yes-the-grenfell-tower-fire-is-political-its-a-failure-of-many-governments-79599">local and national governments</a>, the building’s management company and the corporations it had contracted to renovate the tower. Two years on, campaigners have reacted with dismay to <a href="https://www.bbc.co.uk/news/uk-england-london-47478091">the news</a> that charges might not be brought until 2021 – meaning that the earliest a criminal trial could take place would be 2022, five years after the fire. </p>
<p>Some seem to believe that the delay in launching prosecutions means that those responsible for the Grenfell tragedy won’t face justice, or that authorities are not taking the case seriously. In fact, the amount of time and resources the police are committing to the investigation suggests exactly the opposite. </p>
<p>The police <a href="https://www.theguardian.com/uk-news/2019/mar/06/grenfell-survivors-anger-as-police-say-no-charges-till-2021">are reportedly</a> considering a range of offences, including very serious ones such as <a href="https://theconversation.com/corporate-manslaughter-what-is-it-and-could-it-bring-justice-for-grenfell-tower-victims-79588">corporate manslaughter</a>. Corporate manslaughter cases take time to investigate properly because the offence is complex and can be difficult to prove. </p>
<h2>The long haul</h2>
<p>Looking at previous successful prosecutions, on average, it takes three years and one month from the date of a death for a corporate manslaughter case to be investigated, charges brought and the case decided in court. The longest running case, brought against <a href="https://www.bbc.co.uk/news/uk-england-manchester-35027530">Cheshire Gates & Automation Ltd</a> over the death of a six-year-old girl, took five years and four months from the date of death to sentencing. What’s more, all the previous successful cases have involved only one or two deaths. </p>
<p>Grenfell is a particularly complex case involving 72 deaths, so the investigation was always going to be a lot longer. Apparently, <a href="https://www.gov.uk/government/publications/letters-to-residents-following-the-grenfell-tower-fire-6-june-2018">460 companies</a> were involved in various work at Grenfell Tower over the years, and the police <a href="https://www.grenfelltowerinquiry.org.uk/hearings/procedural-hearing-1">have to analyse</a> over 31m documents, 2,500 pieces of evidence and 2,332 witness statements. </p>
<p>Aside from counter terrorism operations, the size of the investigation is unique, involving <a href="https://www.grenfelltowerinquiry.org.uk/hearings/procedural-hearing-1">187 police officers and civilian staff</a>. From a legal perspective, it’s reasonable to expect that an investigation of this size would take many years: Grenfell would represent, by a very large margin, the biggest and most complex corporate manslaughter case ever brought in the UK. </p>
<p>The police have said they need to wait until the final report of the Grenfell Tower <a href="https://www.grenfelltowerinquiry.org.uk/">public inquiry</a> is published before charges can be brought. This makes sense, as the inquiry may reveal evidence that is useful to the police. Indeed, the fact that the investigation is taking so long suggests that police are prioritising the investigation, and that they are contemplating the more serious charges campaigners have called for. </p>
<h2>Bringing charges</h2>
<p>Once the police have finished their investigation, they will hand their file over to the Crown Prosecution Service (CPS), which will decide what charges are brought. It’s not yet possible to say exactly what the CPS will decide, since it will depend on what evidence the police have found. But if it does proceed it seems likely that multiple charges will be brought against multiple defendants, as has happened before in various corporate manslaughter cases. </p>
<p>For example, corporate manslaughter charges could potentially be brought against the Royal Borough of Kensington and Chelsea council and the organisation that managed Grenfell Tower. Police have <a href="https://www.theguardian.com/uk-news/2017/jul/27/met-says-grenfell-council-may-have-committed-corporate-manslaughter">previously said</a> that there are reasonable grounds to suspect these organisations may have committed corporate manslaughter. These organisations could also be charged with health and safety offences. What’s more, individuals involved in these or other companies could possibly be charged with health and safety offences, or manslaughter. </p>
<p>To secure a conviction for corporate manslaughter, the prosecution has to prove the organisation was grossly negligent and that this led to the deaths during the fire. Gross negligence means that the level of care the organisation gave the victim fell far short of what could reasonably be expected. The prosecution will also have to prove that the organisation’s senior management played a substantial role. This is the key part of the police investigation, as it is often difficult to prove the involvement of senior management where the organisation in question is large and complex – like a local authority. </p>
<p>There have only been <a href="https://en.wikipedia.org/wiki/Corporate_Manslaughter_and_Corporate_Homicide_Act_2007">26 corporate manslaughter convictions</a> since the offence was introduced 11 years ago, and almost all of them involved <a href="https://www.healthandsafetyatwork.com/feature/ten-years-on">small companies</a>. The CPS has <a href="https://www.bbc.co.uk/news/uk-wales-27923572">failed to secure convictions</a> in some corporate manslaughter cases in the past, so the police will want to ensure the evidence is as strong as possible. </p>
<h2>Justice for Grenfell</h2>
<p>If an organisation is found guilty of corporate manslaughter in the Grenfell case, it could receive a fine of millions of pounds – perhaps the biggest in the history of the offence. Individuals could face personal fines or be imprisoned if they are found guilty. </p>
<p>At this time, the police are between a rock and a hard place. If they had rushed to bring prosecutions, they might not have been able to secure all the evidence needed. If the defendants were then found not guilty, the police would have been blamed for botching the investigation. But they are also facing criticism for taking the time they need to carry out a thorough investigation, in order to give any prosecution the best chance of success. </p>
<p>The delay in bringing charges is understandably frustrating, but hasty prosecutions could lead to those at fault being found not guilty and escaping punishment. The police and CPS need to be given time to do their jobs properly to ensure justice is done for the victims of Grenfell.</p><img src="https://counter.theconversation.com/content/113215/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Victoria Elizabeth Roper does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Police have to analyse over 31m documents, 2,500 pieces of evidence and 2,332 witness statements. This makes Grenfell the biggest and most complex corporate manslaughter case ever brought.Victoria Elizabeth Roper, Senior Lecturer in Law/Solicitor, Northumbria University, NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/816962017-09-01T14:25:38Z2017-09-01T14:25:38ZA social psychologist explains how authorities can regain survivors’ trust after Grenfell Tower fire<figure><img src="https://images.theconversation.com/files/184240/original/file-20170831-22416-6oq21g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/garryknight/34976895640/sizes/l">garryknight/Flickr</a></span></figcaption></figure><p>In the aftermath of the Grenfell Tower fire, survivors and their supporters <a href="https://www.youtube.com/watch?v=eANrDnyecSw">were outraged</a> about the perceived lack of care and compassion shown by government bodies, and the agencies which act on their behalf. Since then, UK authorities have <a href="https://www.theguardian.com/uk-news/2017/jul/27/met-says-grenfell-council-may-have-committed-corporate-manslaughter">started criminal investigations</a>, <a href="http://www.bbc.co.uk/news/uk-41025409">intervened in the management</a> of social housing in the area and <a href="https://www.standard.co.uk/news/uk/review-prompted-by-grenfell-tower-disaster-will-look-at-failures-in-building-and-fire-regulations-a3622851.html">launched several inquiries</a>.</p>
<p>All these measures aim to address the suffering and destruction wrought by the blaze and prevent it from happening again. But it remains to be seen whether these measures are enough to restore residents’ trust in these institutions. </p>
<p>Finding resolutions which address these grievances and restore trust in authority is important – and not only because it would help survivors of the blaze and their loved ones to rebuild their lives. All British citizens have a stake in the resolution of the Grenfell Tower blaze, as it is at the heart of British values that the country – and its government – are held to be fair and trustworthy. </p>
<p>Social psychology can offer some insights into how people generate “trust beliefs” – beliefs about who they should trust, which are shaped by their perceptions and interpretations of events such as the Grenfell Tower blaze. By understanding how those beliefs were affected by what happened at Grenfell, it is then be possible to find effective ways to rebuild trust. </p>
<h2>Growing distrust</h2>
<p>According to one social psychological approach – the Basis, Domain and Target trust framework (BDT) – citizens’ trust beliefs in their elected representatives <a href="https://www.psychologytoday.com/blog/matter-trust/201404/almost-all-the-presidents-men-0">are based on expectations that</a> they will act honestly, ensure citizens’ personal information remains private and fulfil promises such as to protect the lives of citizens and maintain their welfare. The BDT also stresses that <a href="https://www.psychologytoday.com/blog/matter-trust/201312/trust-or-not-trust">there are strong tendencies</a> for trust to be reciprocated or vice versa. For example, one person’s distrust in another increases the likelihood that he or she will be distrusted by that other person in turn. </p>
<p>After the fire, it was discovered that Grenfell Tower had been fitted with a cheaper, less fire-resistant cladding which did not meet fire regulations – and that concerns about fire safety had not been addressed to the residents’ satisfaction. So, it is not surprising that survivors of the Grenfell Tower blaze <a href="http://www.independent.co.uk/Voices/grenfell-tower-victims-survivors-kensington-and-chelsea-council-a7848546.html">seem to feel</a> that their trust had been violated because their representatives in local and national authorities failed to act honestly and fulfil their promises to keep citizens safe. </p>
<p>One survivor told The Independent: “If, instead of focusing on asset-stripping the community, they’d been doing what they were meant to be doing – keeping us safe – none of this would have happened.”</p>
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<img alt="" src="https://images.theconversation.com/files/184232/original/file-20170831-22416-1kdu6ct.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/184232/original/file-20170831-22416-1kdu6ct.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/184232/original/file-20170831-22416-1kdu6ct.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/184232/original/file-20170831-22416-1kdu6ct.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/184232/original/file-20170831-22416-1kdu6ct.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/184232/original/file-20170831-22416-1kdu6ct.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/184232/original/file-20170831-22416-1kdu6ct.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">March for justice.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/garryknight/34845763633/sizes/o/">garryknight/Flickr</a></span>
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<p>The BDT framework suggests several likely outcomes of these violations of trust. Survivors may be very reluctant to depend on the agencies to fulfil their promises and act honestly in the future. And their willingness to behave in a trustworthy fashion toward those agencies could be undermined. The distrust between survivors and government agencies is then reciprocated, producing a barrier to communication and cooperation. </p>
<p>Unfortunately, these predictions seem to have played out in the relations between the supporters of survivors and government agencies. After protesters attempted to enter the town hall by force in the days following the fire, the Royal Borough of Kensington and Chelsea (RBKC) consequently <a href="http://www.independent.co.uk/news/uk/home-news/grenfell-tower-latest-fire-survivors-banned-kensington-chelsea-council-meeting-a7814061.html">decided to hold</a> the next council meeting in private, excluding the Grenfell survivors – a move which <a href="https://www.standard.co.uk/news/london/hundreds-of-furious-grenfell-protesters-march-to-kensington-town-hall-ahead-of-first-full-council-a3591791.html">incited further protests</a> and bitterness among the community. </p>
<h2>Finding a resolution</h2>
<p>Further insights are provided by what are known as “<a href="https://www.researchgate.net/publication/259706797_The_Role_of_Justice_in_Organizations_A_Meta-Analysis">social exchange approaches</a>”, which hold that trust is formed between individuals through exchanges through the exchange of good will and positive outcomes between individuals, determined by fair practices and just rules. </p>
<p>This account offers another reason why survivors might distrust government agencies – if they think that they were treated unfairly and unjustly by the agencies. This approach explains why survivors and their advocates <a href="http://edition.cnn.com/2017/07/28/europe/corporate-manslaughter-grenfell-tower-fire/index.html">are seeking legal restitution</a> such as criminal charges, a public inquiry and an inquest. </p>
<p>These social psychological approaches come together to suggest a new and effective way of resolving the problem of distrust between survivors and government agencies. This would involve creating a nonpartisan independent organisation to orchestrate meetings between residents and government agencies. This would bring the parties together by <a href="http://onlinelibrary.wiley.com/doi/10.1111/josi.12120/abstract">providing a structure for interactions</a> which both believe to be trustworthy. </p>
<p>Such meetings would give the parties equal status. The meetings would try to ensure that both parties communicate openly and honestly and express their promises for further actions in a clear and concrete form. The exchanges could then be documented as a formal resolution for government action. In this way, using insights from social psychology could help to redress the problem of distrust arising from the Grenfell Tower tragedy, and restore confidence in a fair and trustworthy government throughout the United Kingdom.</p><img src="https://counter.theconversation.com/content/81696/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ken Rotenberg does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There’s a science to understanding the ways that trust is formed, broken and rebuilt.Ken Rotenberg, Professor in Psychology, Keele UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/795882017-06-16T12:13:50Z2017-06-16T12:13:50ZCorporate manslaughter: what is it and could it bring justice for Grenfell Tower victims?<figure><img src="https://images.theconversation.com/files/174178/original/file-20170616-545-1s6gzod.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">from www.shutterstock.com</span></span></figcaption></figure><p>The disaster at Grenfell Tower has been described by David Lammy, Labour MP for Tottenham, as a case of “<a href="https://www.theguardian.com/uk-news/2017/jun/15/grenfell-tower-death-toll-rises-to-17-as-hope-to-find-survivors-wanes">corporate manslaughter</a>”. According to <a href="http://www.legislation.gov.uk/ukpga/2007/19/contents">English law</a>, companies and organisations can be found guilty of <a href="http://www.hse.gov.uk/corpmanslaughter/about.htm">corporate manslaughter</a> as a result of serious management failures, resulting in a gross breach of a duty of care. </p>
<p>Amid <a href="http://metro.co.uk/2017/06/15/grenfell-tower-fire-is-corporate-manslaughter-and-arrests-should-be-made-says-mp-david-lammy-6710440/">calls for arrests</a>, it’s time to consider whether the failings that led to the Grenfell disaster could possibly justify the use of the label “corporate manslaughter” – and what this would mean for victims who seek justice. </p>
<p>Prosecutions for this offence are of a corporate body (defined broadly enough to include public authorities) and not individuals – so we probably won’t see any pictures of executives being led away in handcuffs. That said, directors, board members and others may still be liable to prosecution under health and safety law or general criminal law. The offence also covers contractors and sub-contractors, so long as they owe a duty of care to the victims. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"875459401661992960"}"></div></p>
<p>A <a href="http://www.gkstill.com/Support/Links/Documents/2007-justice.pdf">duty of care</a> is an obligation, whereby an organisation must take reasonable steps to protect a person’s safety. Legally, it is broadly understood as avoiding negligence by not placing people in danger. These duties also exist in relation to workplaces and equipment, as well as to products or services supplied to customers. This suggests that when an entity exercises control over people and spaces it has a responsibility to protect them. </p>
<p>The corporate manslaughter offence uses the same definitions of duty of care as the common law offence of gross negligence manslaughter. This means that the threshold for the offence is high – the way that activities were managed or organised must have fallen seriously far below reasonable standards.</p>
<h2>The consequences</h2>
<p>Any organisation convicted of this offence would face a fine of anywhere <a href="https://www.sentencingcouncil.org.uk/wp-content/uploads/HS-offences-definitive-guideline-FINAL-web.pdf">between £180,000 and £20m</a> (though there is no hard maximum limit). They would also be handed a publicity order, which requires them to publicise the conviction, along with certain details of the offence, as specified by the court. The court can also set a remedial order, requiring the organisation to address the cause of the fatal injury, which in this case could have consequences for similar tower blocks.</p>
<p>While there is no direct precedent for this kind of tragedy – involving massive loss of life for non-workers – to help us estimate penalties, some indications can be gleaned from the fines imposed on rail operators for train accidents. In 2003, Thames Trains and Network Rail were fined over £2m and £4m respectively, in relation to the health and safety breaches that led to the <a href="http://news.bbc.co.uk/1/hi/uk/1397112.stm">1999 Ladbroke Grove train crash</a>, which killed 31 people. And <a href="http://www.bbc.co.uk/news/uk-england-beds-bucks-herts-11560482">in 2006</a>, Network Rail was fined £3.5m and Balfour Beatty an eventual £7.5m (following an appeal) for faults leading to the fatal derailment of a train near Hatfield in 2000.</p>
<p>It’s also possible for an organisation to be charged with both corporate manslaughter and health and safety offences in the same proceedings. In these circumstances, if an organisation is convicted of corporate manslaughter the jury may still be asked to return a verdict on the health and safety charges if the interests of justice so require, which can have further consequences for individuals.</p>
<h2>Potential defendants</h2>
<p>Corporate manslaughter is an extremely serious offence, reserved for the very worst cases of corporate mismanagement leading to death. Even before knowing the full extent of the Grenfell disaster, it’s safe to say that it is likely to fall in this category. </p>
<p>Potential defendants in this case – should one eventually be brought – would probably include the building’s <a href="http://www.independent.co.uk/news/uk/home-news/london-fire-grenfell-tower-company-asks-donations-victims-money-fndraise-kensington-chelsea-tenant-a7790371.html">management company</a>, the Royal Borough of Kensington and Chelsea Tenant Management Organisation (KCTMO), and possibly also contractors involved in <a href="https://www.theguardian.com/uk-news/2017/jun/14/towers-managers-were-reviewing-safety-after-fire-at-another-block">the tower’s recent renovation</a>. </p>
<p>But advocates for the victims are likely to be looking further than that, seeking to challenge the behaviour of public authorities and political decisions about spending on improvements to social housing in London. Prosecutions of public authorities would have far-reaching political consequences. </p>
<p>If the defendant is a public authority, exemptions may apply to decisions about public policy. For example, strategic funding decisions and other matters involving competing public interests, cannot be challenged in criminal proceedings. But decisions about how resources were managed are not exempt, which means that deliberate under-investment in maintaining safety could lead to prosecutions.</p>
<p>According to the law, the offence is concerned with how an organisation’s activities were managed or organised. So, courts will look at management systems and practices across the organisation in question, and investigate whether an adequate standard of care was applied. A substantial part of the failing must have occurred at a senior management level for a conviction to be successful.</p>
<p>Juries would be required to consider the extent to which an organisation was in breach of health and safety requirements, and assess how serious those failings were. They would also consider wider cultural issues within the organisation, such as attitudes or practices that tolerated health and safety breaches. What’s more, it would not be necessary for the management failure to have been the sole cause of death, so a tenant’s actions in starting this fire would not exonerate those responsible for inadequate safety measures.</p>
<p>For now, London is in mourning. But when the immediate phase has passed, the law will turn its attention to those who may be responsible, and see that justice is carried out.</p><img src="https://counter.theconversation.com/content/79588/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ioannis Glinavos does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Amid calls for arrests, a law expert explains what the offence actually entails.Ioannis Glinavos, Senior Lecturer in Law, University of WestminsterLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/375122015-02-17T00:39:32Z2015-02-17T00:39:32ZIf a company causes death at sea, don’t assume that means jail time<p>Late last week, an Italian court <a href="http://www.theguardian.com/world/2015/feb/12/costa-concordia-captain-jail-francesco-schettino-sentence-appeal-italy">sentenced</a> the captain of the Costa Concordia cruise liner, Francesco Schettino, to 16 years’ jail after finding him guilty of multiple charges of manslaughter.</p>
<p>On January 13, 2012, the ship ran aground and keeled over off the coast of the island of Giglio, Italy. Thirty-two people drowned.</p>
<p>Twenty-eight years ago, on March 6, 1987, the passenger car ferry Herald of Free Enterprise left the Belgian port of Zeebrugge, bound for Dover. Tragically, her bow doors remained open and she <a href="http://news.bbc.co.uk/onthisday/hi/dates/stories/march/6/newsid_2515000/2515923.stm">keeled over</a>, trapping and drowning 188 passengers.</p>
<p>In June 1989, seven individuals and their employer, P&O European Ferries, were charged with what is referred to as “corporate manslaughter”. But a year later the English judge <a href="https://www.em.gov.au/Documents/Preventing_disaster_by_building_a_risk_prevention_ethnic.pdf">dismissed the charges</a>, having become satisfied that the prosecution had failed to establish its case.</p>
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<p>Why was there a difference in the outcomes of these two cases? Generally speaking, a prosecutor seeking to get a conviction in such circumstances must be able to single out the culpable decision-making of someone who represents the “guiding mind” of a company. Where many people participate in poor decision-making, it is extremely difficult to establish guilt. On this point there is no significant difference in international legal approaches.</p>
<p>Simply stated, Schettino was an <a href="http://www.independent.co.uk/news/world/europe/costa-concordia-trial-was-captain-francesco-schettino-really-the-only-one-at-fault-for-the-disaster-10046725.html">easily identified culprit</a>. He made the fateful decision to divert his ship closer to Giglio than was safe. It didn’t help that he abandoned ship ahead of hundreds of his passengers.</p>
<p>In contrast, the criminal negligence of the crew of the Herald of Free Enterprise was shared around. It was impossible to find a “guiding mind”. The prosecution was doomed from the start.</p>
<p>Shouldn’t there be some way that the law could fill this loophole so that appropriate criminal responsibility can be assigned to those who deserve it? The answer is yes, but the path towards “joint” or corporate criminal liability is paved with stumbling blocks. As legal academics Jim Gobert and Maurice Punch <a href="http://www.cambridge.org/au/academic/subjects/law/corporate-law/rethinking-corporate-crime">explain</a>:</p>
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<p>… criminal law was not developed with companies in mind … Trying to apply [it] to companies is a bit like trying to squeeze a square peg into a round hole.</p>
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<h2>What is the state of the law in Australia?</h2>
<p>Let me give an Australian example that illustrates the legal difficulties. Excalibur, a 15-metre racing vessel built by Applied Alloy Yachts, a company owned by an Alex Cittadini, <a href="http://www.smh.com.au/news/National/Yacht-disaster-a-tragedy-waiting-to-happen/2005/03/25/1111692630753.html">capsized off Port Stephens</a> in September 2002 after its keel snapped in high winds. Four of the six crew drowned.</p>
<p>In April 2009, four <a href="http://www.theaustralian.com.au/news/excalibur-builder-jailed-over-deaths/story-e6frg6n6-1225748318005">manslaughter convictions</a> were returned against Cittadini – notwithstanding Judge Norrish accepting his evidence that he was unaware of the cut. The judge ruled that even if Cittadini did not know about the cutting of the keel, he should have known about it. He sentenced Cittadini to three years jail.</p>
<p>However, the NSW Court of Criminal Appeal subsequently quashed the convictions and directed verdicts of acquittal, determining that the verdict was “unreasonable”. A survivor of the Excalibur tragedy, Brian McDermott, later <a href="http://news.smh.com.au/breaking-news-national/boat-builder-wins-appeal-over-deaths-20091218-l1ak.html">expressed deep disappointment</a> that no-one had been held accountable for the deaths.</p>
<p>In 1995, the federal parliament had decided to up the ante and passed into law <a href="http://www.comlaw.gov.au/Details/C2013C00006/Html/Text#_Toc344980345">Part 2 of the Commonwealth Criminal Code Act</a>, which expands the notion of criminal liability to corporations in a most innovative way. Under this legislation, a company can be convicted of manslaughter where the negligence involved is attributable to more than one person. The “guiding mind” can be an aggregation of minds.</p>
<p>In addition, the code allows culpability to be established by reference to a company’s poor “corporate culture”. That is, a company can be deemed criminally liable for a death if it has a culture that actively or even passively permits or tolerates non-compliance with the law. Imprisonment of managers may result.</p>
<h2>Commonwealth law has a catch</h2>
<p>Why didn’t this law apply to Cittadini? Because there is a catch: the code applies only to Commonwealth offences, and manslaughter is not a Commonwealth offence. In order to give effect to the code’s lead, the states and territories need to adopt its provisions. </p>
<p>To date, the Australian Capital Territory is the only jurisdiction that has chosen to do so, but <a href="http://www.legislation.act.gov.au/a/1900-40/current/pdf/1900-40.pdf">its legislation</a> applies only to deaths in the workplace. The <a href="http://www.legislation.gov.uk/ukpga/2007/19/contents">English law</a> has changed in some similar respects. Also, the law came into effect in 2004, yet there have been <a href="https://books.google.com.au/books?id=_WO5mvdh5KEC&pg=PT144&lpg=PT144&dq=Penalising+corporate+%E2%80%9Cculture%E2%80%9D:+The+key+to+safer+corporate+activity?&source=bl&ots=DYJwEh9Dxq&sig=2bOn_YXS4E6At30TM1WvRVtMkzU&hl=en&sa=X&ei=FGHdVLTVL4fY8gWqqYDADg&ved=0CCsQ6AEwAw#v=onepage&q=Penalising%20corporate%20%E2%80%9Cculture%E2%80%9D%3A%20The%20key%20to%20safer%20corporate%20activity%3F&f=false">no prosecutions to date</a> that the author is aware of.</p>
<p>This prompts the question whether there is any value in singling out corporate directors for punishment solely by virtue of their status within a delinquent company. Is it not too arbitrary to allow one officer to take the blame for the tragic consequences of a chain of bad decisions? Where is the <a href="http://www.profinfo.pl/img/401/pdf40162523_3.pdf">evidence</a> that imprisonment of key managers will act as a deterrent?</p>
<p>Be that as it may, there is no doubt that many if not all of the families of the 32 victims of Schettino’s stupidity will get some satisfaction from the knowledge that he will now spend a considerable period of time behind bars.</p><img src="https://counter.theconversation.com/content/37512/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Late last week, an Italian court sentenced the captain of the Costa Concordia cruise liner, Francesco Schettino, to 16 years’ jail after finding him guilty of multiple charges of manslaughter. On January…Rick Sarre, Professor in Law, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.