Corporate Manslaughter - Don't become a headline.

The government considers that the Corporate Manslaughter and Corporate Homicide Act 2007 sends out a powerful deterrent message to those organisations that do not take their health and safety responsibilities seriously. The Act is intended to build on existing health and safety legislation and does not seek to impose new regulations on business.

Having taken more than ten years to arrive, the Corporate Manslaughter and Corporate Homicide Act 2007 came into force in April 2008.

The New Act will make it easier to prosecute companies, and other large organisations, in cases where gross failures in the management of health and safety have lead to death. In particular, it has reformed the law so that there is now much more prospect of medium and large companies being held liable for manslaughter in instances where they may have escaped conviction in the past. The new Act also removes Crown immunity to prosecution for such offences.

The Offence
Under Section 1 of the Act:

• An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised—
  • causes a person’s death, and
  • amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased

This means that any organisation whose gross negligence leads to the death of one or more individuals may face prosecution for corporate manslaughter. An organisation will be guilty of such an offence if the way in which its activities are managed or organised by its senior management causes a person’s death and amounts to a gross breach of a relevant duty of care owed by that organisation to the deceased.

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Penalties
There is no power of imprisonment associated with the Corporate Manslaughter and Corporate Homicide Act 2007. The courts have the traditional measures of fines and remedial orders open to them and the new concept of Publicity Orders.

• Fines - on conviction, an organisation is liable to an unlimited fine.
• Remedial Orders - the court may impose a remedial order, requiring the organisation to take specified steps to remedy the breach and any deficiencies in the organisation’s policies, systems and practices.
• Publicity Orders - the Act will allow the courts to require convicted organisation to publish details of the offence and the imposed penalties. The Act leaves this power open-ended with respect to the medium of publication and the costs of doing so, which are paid by the defendant.

The Act will apply to organisations, not to individuals. An individual member of a senior management team cannot be guilty of aiding, abetting, counselling or procuring the commission of an offence under the Act. Individual directors or managers may still, however, be prosecuted under existing health and safety laws.

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Effect on existing health and safety and related legislation
All existing health and safety legislation will continue to apply. This means that an organisation can be convicted of corporate manslaughter arising out of a particular set of circumstances and can also face prosecution for offences under existing health and safety legislation arising out of the same circumstances.

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Duty of Care under the Act
No new duties of care are created by the Act. The term “a relevant duty under the act” (in Section 1) essentially relates to any duty owed under the common law of Negligence to the person (or persons) who have died, provided that the duty falls within four broad categories:

• a duty of care owed by an organization to its employees or to others working for it (such as contractors, etc.)
• a duty of care owed as the occupier of premises
• a duty of care owed in connection with certain activities:
  • supply of goods and services
  • construction or maintenance work
  • use or keeping of plant, vehicles or other things
  • any other activity carried out on a commercial basis
• a duty of care owed to somebody being retained in custody or otherwise detained (including offenders, mental health patients or those held for immigration purposes)

In line with modern health and safety legislation, but a difference from Negligence cases, the new Act does not allow the organization to use the common law defense of the injured person voluntarily accepting the risk (volenti non fit injuria).

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Role of “Senior Management”
Section 1(3) of the Act states that:

• An organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1)

“Senior Management” in this context means those who play a significant role in making decisions about how the organisation’s activities are managed. The new Act does not, however, require any proof of an individual being guilty of an offence (often referred to as the Identification Principle). The new law replaces the Identification Principle with the Aggregation Principle, which permits the aggregation of what might be a series of collective errors to allow the conclusion to be reached that the (defendant) organisation was organisationally criminally deficient.

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Summary
The Corporate Manslaughter and Corporate Homicide Act 2007 makes it easier for larger organisations to be found guilty of Corporate Manslaughter than the previous legislation did. It achieves this by removing the Identification Principle and allows for the aggregation of collective management failings to be adequate proof of guilt. Although there is no power of imprisonment associated with the Act, it will now be possible to ensure that unlimited fines are levied against organisations that cause death as a result of management failures with respect to health and safety. As well as being fined, organisations may be required to implement certain remedial actions and may also be required to publish details of their offences and the penalties implemented.

The formal investigation (carried out under the 1894 Merchant Shipping Act) of the sinking of the Herald of Free Enterprise made several observations:

• “From top to bottom the body corporate was infected with the disease of sloppiness…”
• “The Board of Directors did not appreciate their responsibility for the safe management of their ships”
• The underlying or cardinal faults lay higher up in the Company”

Despite this, no conviction of Corporate Manslaughter was possible under the previous legislation. It is likely that a conviction would have been made if the new Corporate Manslaughter and Corporate Homicide Act 2007 had been in forced at the time.

To find out how your organisation can identify and avoid the risks of a charge contact LRB Consulting today.

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