Hillsborough - A lesson for us all?

The law concerning corporate manslaughter changed in 2008, widening the scope for organisations to be held responsible in the criminal courts. Successful cases have been slow to appear, but with the risk of incredibly high fines (based against turnover), this is something which companies need to be aware of. To explain it clearly, let's take a look at how this change in the law may have made a huge difference to the outcome of the Hillsborough case, had it been made sooner.

Earlier this month saw the well-publicised acquittal of former Chief Superintendent, David Duckenfield, who was found not guilty of the gross negligence manslaughter of 95 Liverpool supporters in the Hillsborough stadium disaster in 1989.Tragically, 30 years on, the families of the deceased are still unable to find closure. While the inquest of 2016 concluded that those supporters were unlawfully killed, the only party to be held to account in a criminal court was the former safety officer of Sheffield Wednesday, Graham Mackrell, who was fined £6,500 for a breach of health and safety (namely, a failure to ensure that enough turnstiles were in operation outside the stadium) earlier this year. Given the scale of the disaster, and the huge financial resources invested into the criminal investigation (£60 million), this will be of little consolation to the families.

With that in mind, and taking into account that Duckenfield has stood trial twice this year, it raises the question of whether there was ever sufficient evidence to convict him alone of gross negligence manslaughter? Furthermore, rather than pursue Duckenfield individually, why did the prosecution not pursue South Yorkshire Police as an organisation? It is correct that officials from Operation Resolve, who had responsibility for carrying out the criminal investigation, did ask the Crown Prosecution Service (CPS) to consider bringing proceedings against South Yorkshire Police for the common law offence of corporate manslaughter back in 2012. However, due to its limitations, and the specific requirement for there to be evidence that the Chief Constable himself was grossly negligent in relation to the disaster, meant that such a prosecution could not be pursued.

 

Corporate Manslaughter and Corporate Homicide Act 2007

The law concerning corporate manslaughter changed in 2008 following the introduction of the Corporate Manslaughter and Corporate Homicide Act 2007. The statutory offence of Corporate Manslaughter was brought in to ensure that there were “effective laws in place to prosecute organisations where they have paid scant regard to the proper management of health and safety with fatal results”. Under the Act, the scope of the offence has widened, putting focus on the overall management of the activities of an organisation, rather than the actions of particular individuals. It is no longer necessary to show that a person who was the controlling mind of the organisation was personally responsible for the offence. It must also be proved that the way in which the activities of an organisation are managed by senior personnel made a more than minimal contribution to a death, and also amounted to a gross breach of a relevant duty of care. Where Hillsborough is concerned, it could be argued that, had the disaster occurred today, the prospects of the CPS securing a conviction against South Yorkshire Police for the offence of corporate manslaughter would be far greater than they ever were against Duckenfield individually. Although Duckenfield was the match commander on the day of the disaster, and notwithstanding his acceptance that he made serious errors on the day, he did not plan or carry out these functions alone. Nor did he appoint himself to oversee operations, which must have fallen to a more senior officer, despite his apparent lack of experience.

A jury, faced with evidence of collective failings at a senior level, may have found it much easier to convict South Yorkshire Police rather than focussing solely on the actions of one individual. While this is speculation, if the finger of blame is to be pointed anywhere, it is arguable that this should be at the legislators who did not address the clear and obvious limitations of the common law offence soon enough.

 

Risks for corporate bodies

Although the number of prosecutions that have been brought against organisations for the offence of corporate manslaughter is relatively low (25 at the end of 2017), the number of investigations are on the rise, including the well-publicised Grenfell disaster. Companies need to be aware of this and the fact that changes to the law in this area make it far more likely that, in the event of a fatality, the police will pursue an allegation of corporate manslaughter. Like health and safety offences, the offence of corporate manslaughter carries unlimited financial penalties on conviction, and therefore the risk to corporate bodies is very significant indeed. These penalties are based largely on turnover with the sentencing guidelines making it clear that, even for micro-companies, the lowest start point is still an eye watering £300,000.

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