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Point of law - Back in the line of fire by Stephen Cirell and John Bennett

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27 May 2005

The first corporate manslaughter case against a council was thrown out because of the need to identify a 'controlling mind'. But there is no room for complacency, as a new law may shift the balance of power

In March, the corporate manslaughter case against Barrow-in-Furness Borough Council — over a fatal outbreak of legionnaire's disease at the council's Forum 28 arts centre — was thrown out. The judge at Preston Crown Court, Mr Justice Poole, directed the jury to find the council not guilty (Point of Law, April 15–21, 2005).

His reasoning was not released at the time, as the case against the council's design services manager, Gillian Beckingham, was continuing. On April 22, that jury was discharged after failing to reach a verdict on the seven counts of manslaughter against Beckingham, though it did find her guilty of breaches of the Health and Safety Act.

It has now become clear why the judge ruled as he did in respect of the council.

The law currently requires a 'controlling mind', someone so instrumental in directing the strategy and actions of the 'corporate' body that he/she can literally be 'identified' with the body. This means that it is necessary to point to one individual with whose acts or omissions the corporate entity can be identified. As no local authority had ever been charged before with the corporate manslaughter offence, it had never been necessary for a court to address its mind as to whom such an individual might be in the local authority context. This issue is crucial in relation to subsequent cases under the present law (revised legislation is expected this year).

To succeed against the council, the prosecution had to show that Beckingham was the controlling mind, that she owed the victims a duty of care and that she acted in a grossly negligent manner, with a direct causal link to the fatalities. The council's team argued that on the evidence before the court it was impossible that she could be the person in control of the affairs of Barrow to such a degree that her actions and intent were the actions and intent of the council. They said that no officer — even the chief executive — had any right to decide issues of policy. These were the preserve of the members, via the ordinary democratic process.

In any event, as Beckingham was a third-tier officer, she was nowhere near high enough in the pecking order to be considered the embodiment of the corporate entity — the council — itself. Evidence showed that she had a line manager to whom she reported and a budget that she could not exceed. She frequently had to report to and seek the approval of the senior management team with respect to the most routine of items.

These submissions were accepted by the court. The judge concluded: 'There are, as it seems to me, in the present state of the law relating to corporate manslaughter, considerable difficulties facing those who contemplate the prosecution of a local authority… A local authority is not, in all material particulars, to be equated with a commercial enterprise of any size; still less perhaps with a very small corporation with few directors or a sole director…. It is far from clear to me that even the chief executive officer could properly be described as the controlling mind of a council of elected members, but that is not something I have to decide.'

While this was welcome news to Barrow, it cannot be taken at face value by other authorities. In other circumstances, it might well be argued that a senior officer of an authority would meet the test of the controlling mind. However, what it does demonstrate is the possibility that under new forms of executive local government, elected mayors or portfolio-holding Cabinet members could easily be in the line of fire as the law presently stands.

Two other points are relevant. The first is that, bearing in mind the comments of the judge, there must be some doubt whether the Crown Prosecution Service could secure a conviction against Beckingham in any retrial, without putting its case differently. The fact that the Crown intends to pursue the matter shows a determination to press on with a policy of seeking convictions in appropriate cases.

In any event, and just in case local government might be in danger of complacency over this issue, the proposals for a new corporate manslaughter offence were renewed in the Queen's Speech on May 17. Although still subject to consultation, this would shift the emphasis seismically from an individual's failings to systemic failings. The identification principle discussed above — which has been the rock on which so many prosecutions for corporate manslaughter in the past have foundered — would become irrelevant.

So the challenges in relation to this sensitive area will not recede. It is for this reason that corporate manslaughter rightly continues to be on the 'insomnia radar' of so many chief executives.

Stephen Cirell is head of local government and Professor John Bennett is a consultant solicitor with Eversheds. Their new book, Charging and trading in local government, is published by Sweet and Maxwell next week

PFmay2005

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