The number of excess deaths which have occurred in the UK during the COVID-19 pandemic run into many thousands; this includes patients, care home residents, visitors and employees. Health and social care providers, and government departments, may be vulnerable to criminal charges.
Am I vulnerable to a corporate manslaughter prosecution?
Corporate manslaughter is a criminal offence by a corporation, organisation or government body. An individual person cannot be charged with this offence (although an individual can be prosecuted for gross negligence manslaughter if identified and directly involved).
Who investigates the death?
Where there is a concern about possible manslaughter, the police will conduct an investigation. The Health & Safety Executive or Local Authority will also conduct an investigation relating to possible offences under the Health & Safety at Work Act and will pass to the police any information relevant to a serious criminal offence. The police engage with the Crown Prosecution Service's specialist corporate manslaughter team, for advice on the evidence, before a decision is made to charge the organisation. As a result, the priorities, interests and resources of your local police force may play a part in how likely it is that your organisation will be investigated; this may be affected by media coverage, social media campaigns or complaints made directly to the police.
What action amounts to the criminal offence?
There are specific ingredients for this criminal offence, which we will explain using an example: an employed care worker has sadly died from Covid-19, while caring for residents who have tested positive for the virus. During the investigation, their family reports that they were not given sufficient PPE, and the HSE refer the death to the police.
The criminal prosecution would have to prove, beyond reasonable doubt, that:
Depending on the evidence, the prosecution may well argue that the defendant failed to comply with HSE legislation (to ensure the safety of their employees) by failing to provide PPE. If no PPE was supplied at all, after the start of the pandemic, then a 'gross breach' might be proven.
However, section 8(4) of the Corporate Manslaughter and Corporate Homicide Act 2007 allows the jury to have regard to 'any other matters which they consider relevant'. The defendant may be able to demonstrate that it was not possible to buy the necessary PPE because of national shortage, and that they took other interim steps to reduce the risk of infection. A jury might be persuaded that the care home company took all reasonable steps, so that although their actions were breach of duty, they could not be sure that they amounted to a 'gross failure'.
Exemptions from liability
A guilty verdict will be avoided if the defendant demonstrates that an essential element of the offence is missing, for example that there has only been a breach of duty, rather than a gross breach. As a result, the criminal investigation and a charging decision, will depend heavily on the facts of the case, the decisions made, and their context.
Organisations may seek to rely on the exceptions from liability in 'public emergencies' (sections 3 – 7 of the Act). This is relevant to decisions in relation to issues of public policy, such as the allocation of public resources. 'Public emergency' is not defined in the Act, but it is possible that the pandemic may be an appropriate defence.
Sentencing after a guilty verdict
If the jury decide that all five elements are proven, the organisation will be found guilty of corporate manslaughter. Whilst the sentence range is between £180,000 - £20 million, the maximum fine is unlimited and could potentially exceed the range for a very large organisation.
Clyde & Co recommendations
The Healthcare Department at Clyde & Co advises health and social care organisations in relation to police investigations. Our in-house lawyers (including barristers) can attend at the police station, liaise with the police, HSE and CQC on your behalf and can obtain immediate witness evidence. Sometimes, providing clarifying information can bring an appropriate end to the investigation.
Authors: Daniella Kara, Jacques Howell and Gemma Brannigan