Fatal Accidents And Criminal Liability: A Guide To The Legal Landscape

Fatal accidents are usually preventable which leads to questions of responsibility and criminal liability. This article seeks to explain when organisations and individuals will be found criminally liable, for which offences, and with what sanction.

The legal landscape of a fatal accident

The legal landscape applicable to fatal accidents has been transformed by the Corporate Manslaughter and Corporate Homicide Act 2007 and the Health and Safety (Offences) Act 2008, and more recently the Sentencing Council's definitive guideline, "Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences", which together have ushered in a new era of criminal liability for organisations, directors and employees.

An investigation following a fatal accident is now undertaken with a view to prosecuting:

An organisation for corporate manslaughter An organisation for breaching the Health and Safety at Work etc. Act 1974 (the "HSWA") An individual for common law gross negligence manslaughter A senior officer for secondary liability in relation to breach of the HSWA by the organisation (s.37 HSWA) An employee for breach of the HSWA for failing to take reasonable care of others (s.7 HSWA) Corporate manslaughter, gross negligence manslaughter and health and safety offences are all criminal offences that are prosecuted in the criminal courts and attract significant penalties (very high fines or imprisonment).

The offences - corporate manslaughter (and individual gross negligence manslaughter)

The Corporate Manslaughter and Corporate Homicide Act 2007 came into force in April 2008. Previously, it had been notoriously difficult to convict large companies of the common law offence of gross negligence manslaughter (which, until the Act, had been commonly referred to as "corporate manslaughter"), although there had been a number of convictions of small companies.

The Act removes the necessity under the old law to identify and establish the guilt of a 'directing mind', a senior individual who could be said to embody the company in his actions and decisions. In a large or medium-sized organisation, such an individual is often far removed from the events surrounding the death, making establishing his guilt for gross negligence manslaughter unlikely.

Instead, the Act concentrates on the way in which the organisation's activities were managed or organised, commonly referred to as a 'management failure', and whether that caused the death (although it...