Corporate Manslaughter
News Items – Please click on each link to go to the article
- Corporate Manslaughter – Practical legal advice
- Questions about the Corporate Manslaughter Bill
- Bad driving: Crown Prosecution Service (CPS) issues new policy document
Corporate manslaughter law: practical legal advice on what you should do to be prepared for this legislation
In the dock
Organisations will soon be answerable for the actions or omissions of any senior manager if a death occurs. Kevin Elliott explains.
The Corporate Manslaughter and Corporate Homicide Act, which comes into force in April 2008, appears to address the weaknesses of the law as it presently stands.
Currently, a single individual, identifiable as the directing mind of the company, has to be personally guilty of gross negligence or manslaughter before an organisation can be convicted of corporate manslaughter.
The Act is Parliament’s attempt to remove the barrier of having to identify the controlling mind of an organisation. It provides that an organisation will be guilty of corporate manslaughter if an organisational or gross management failing causes a person’s death. This means that the actions of senior management below director level could still be deemed to be the actions of the organisation.
Significant roles
The Act defines a senior manager as a person who plays a significant role in an organisation in:
- Making decisions about how the whole or a substantial part of its activities are to be managed or organised
- The actual managing or organising of the whole or a substantial part of those activities.
Two specific disciplines of management responsibility are covered – taking decisions about the organisation of activities and the actual management of those activities. This seems to extend the definition of ’senior manager’ to encompass operational managers alongside strategic decision-makers.
An organisation is guilty of the new offence if the way its activities are managed or organised by its senior managers causes a person’s death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
Failures in duty of care
So the new offence comprises two elements. The first is that a management failure must have caused the death. Explanatory notes to the Act indicate that such failure must be more than a minimal contribution to the death and there must be no break in the chain of causation. However, the management failure does not need to be the sole cause of the death.
The second element relates to the ‘relevant duty of care’ that the organisation owed to the deceased. Such a duty can arise from an organisation’s role as employer, occupier, supplier of goods or services, constructor or maintainer, or keeper of any plant, vehicle or ‘other thing’.
Once the duty of care has been established, the prosecution must demonstrate gross breach of that duty. Such a failure is defined as conduct that “falls far below what can reasonably be expected of the organisation in the circumstances”.
To assess this, the proposed law will require a consideration of the organisation’s compliance with health and safety legislation.
Rather than consider the knowledge and motives of senior managers, the risk of death from any failure to comply with legislation will need to be evaluated in the first instance. Attention will then be given to the attitudes, systems, policies and accepted practices within the organisation which may have encouraged or tolerated non-compliance with the legislation.
The whole ethos of the legislation is to emphasise the importance of compliance with existing health and safety law and guidance. Statements in policy documents need to be clearly evidenced in practice and not exceed legal thresholds.
If a statement of intent is unachievable and a fatality occurs, the organisation could be held accountable to its own declared standard rather than the legal minimum.
In this context, many organisations make laudable declarations as to their intent for their employees and stakeholders, but these very declarations, if not deliverable, should be re-evaluated.
Kevin Elliott is regulatory partner at Eversheds
What you should do
- Assess your organisational structure to determine who could be considered a ’senior manager’ – these individuals should be appropriately trained and competent for their role.
- Review job titles and job descriptions to ensure they represent the seniority of the post-holders’ position.
- Provide update training for senior managers on their health and safety responsibilities.
- Review all health and safety policies to ensure that statements made and standards set are achievable and do not exceed legal obligations, unless there are good reasons.
- Check that your insurance cover includes legal protection in the event of criminal charges for corporate manslaughter.
- Review your health and safety culture to promote a safer environment for your employees and, where relevant, the public.
- Revisit your disaster management plan and ensure there is a protocol for dealing with the authorities and working with legal advisers when a fatality occurs.
- Consider insurance and indemnity policies for staff members who may need legal support during the period of any investigation. This will need to cover expenses where they are not personally found guilty of such offences.
Q What offence is created by the new Corporate Manslaughter and Corporate Homicide Act 2007?
A The Act creates the new statutory offence in England, Wales and Northern Ireland of “corporate manslaughter”, and in Scotland of “corporate homicide”.
A company will be guilty of the new offence if the way in which its activities are managed or organised, by its senior management, amount to a gross breach of the duty of care it owes to its employees, the public or other individual and those failings caused the person’s death.
Companies and government bodies face prosecution if they are found to have caused a person’s death due to their corporate health and safety failings.
Q How does the Act differ from the current law?
A The current law links a company’s guilt to the gross negligence of an individual who is said to be the embodiment of the company. It has proved very difficult to prosecute large organisations, and the only successful prosecutions have been against small companies where the director and company are essentially one and the same.
The new Act seeks to address this difficulty by focusing on the way in which a company’s activities are managed or organised, and it is not reliant on one individual being found guilty of gross negligence manslaughter. The courts will now be able to consider the wider corporate picture, looking collectively at the actions, or more appropriately the failings, of the company’s senior management.
Q Who will be considered to be “senior management”?
A A company will be guilty of the new offence if someone has been killed as a result of the gross failure of a company’s senior managers – for example, where they fail to ensure safe working practices. Senior management is defined in the Act as those persons who play a significant role in the decision-making process about how the company’s activities are managed and organised. But there has been lots of debate about what constitutes “senior management”. The answer will be different in each case, depending on the size and structure of the business involved.
Q What will amount to a gross management failure?
A To secure a conviction, the prosecution must prove that the management failure amounted to a “gross breach” of the duty of care owed to the deceased. When determining this, the jury should consider whether the evidence shows that the company’s conduct fell far below that which could reasonably have been expected of it. Factors that will be taken into account include whether the organisation failed to comply with any relevant health and safety legislation, and if it did, how serious that failure was, and how much of a risk of death it posed. The jury may also consider the extent to which the evidence shows there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged, or tolerated, such failings.
Q When will the Act come into force?
A It will come into force on 6 April 2008, and it is expected that the Ministry of Justice will publish further guidance this autumn. When the Act initially comes into force, it will not apply to deaths that occur in police custody or prison. It is likely this part of the legislation will come into force later.
Q Will the new Act affect individuals?
A The new Act is about corporate responsibility and liability, and is not concerned with increasing the liability of individuals, who can already be held to account through existing health and safety legislation and the common law offence of gross negligence manslaughter.
The Act attempts to create a more effective method for prosecuting companies, with the focus being the worst cases of management failure that have resulted in death. It is hoped that the effect of a possible conviction, and resulting penalties, will be a sufficient incentive for companies that consistently fail to meet proper standards to improve and provide their employees with safer working environments.
Q What penalties will a company face?
A Penalties include an unlimited fine, remedial orders and publicity orders. A remedial order will require an organisation to take steps to remedy any management failure that led to death. The court can impose an order publicising the fact the company has been convicted of the offence, providing details, the amount of any fine imposed and the terms of any remedial order made.
Originally published by -
Steffan Groch,
partner,
health and safety,
DWF
With thanks
Bad driving: Crown Prosecution Service (CPS) issues new policy document
The CPS has issued a new policy document, Policy for prosecuting cases of bad driving, which advises as to the way in which it will deal with cases of bad driving – from aggravated vehicle taking to murder. A copy of the policy can be downloaded here http://www.cps.gov.uk/publications/prosecution/pbd_policy.html.
The document provides specific examples of careless and dangerous driving which include using a hand-held mobile phone when driving. It states that a charge of dangerous driving will be the starting point of their decisions in cases where the driver was avoidably and dangerously distracted by using a hand-held mobile phone or other hand-held device. Where incidents are work-related, prosecutors will look to determine whether offences have been committed by the driver’s employer, and they will work with the Health and Safety Executive and the police in the case of work-related deaths.
The policy highlights the need for members to ensure that their employee’s use of mobile phones and other potential distractions whilst driving at work is properly risk assessed and managed. FTA has updated its mobile phone compliance guide to reflect the CPS policy. Members can download a copy at http://www.fta.co.uk/information/mobile-phone-compliance-guide/.
Source – The Freight Transport Association – Dec 2007
