Corporate Manslaughter – Corporate Manslaughter and Corporate Homicide Act 2007

(This article is to be used as a general guide only. It is not intended to contain definitive legal advice which should be sought as appropriate)

Full reference should be made to the full Act.

The offence

An organisation is guilty of an offence if the way in which any of its activities are managed or organised by 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
  

This will only apply if the way in which its activities are managed or organised by senior management is a substantial element in the breach of duty.

Who can be guilty?

Individual directors and managers cannot be liable under the Act. Despite the focus on “senior management” in the wording of the offence, individuals are expressly excluded from liability for aiding, abetting, counselling or procuring the proposed offence.

The Act targets “organisations”. This is defined to mean:

• a corporation wherever incorporated
• one of the Government bodies listed in a schedule to the Act
• a police force; or
• a partnership, trade union or employers’ association that is an employer.

The Act does not make parent companies liable for the failings of their subsidiaries. A company within a group can only be liable for a death where it owes a direct duty of care to the deceased and the death was caused by failures of its own senior management.

What conduct is caught by the offence?

The Act attributes liability to an organisation in a different way from the current “directing mind” test for corporate liability for gross negligence manslaughter.* The offence focuses on the management of the activities of the organisation by its senior management.

* Currently, for a company to be convicted of manslaughter, an individual who can be identified as embodying the company itself (the “directing mind”) must be shown to have been guilty of manslaughter.

This Act appears to consider management conduct collectively and focus the offence on the way in which an activity was being managed or organised by an organisation overall and not to base liability on localised or junior management failings.

What is “senior management”?

“Senior management” is defined to mean the persons who play significant roles in:

• the making of decisions about how the whole or a substantial part of the organisation’s activities are to be managed or organised; or
• the actual managing or organising of the whole or a substantial part of those activities.

This definition relates to two distinct areas of management responsibility — taking decisions about how activities are managed or organised and actually managing those activities. Operational management as well as board level strategic management is therefore covered

What constitutes a substantial part of an organisation’s activities will need to be considered in the context of individual organisations and will depend on their overall scale of activities – ie, the role of “senior management” may be quite different within different organisations depending on their size.

What is a “relevant duty of care”?

The new offence applies only where an organisation owed a duty of care to the deceased “under the law of negligence”. Particular duties are specified as follows:

• duty owed to employees or to other persons working for the organisation or performing services for it
• duty owed as occupier of premises
• duty owed in connection with:

  – the supply by the organisation of goods or services
  – any construction or maintenance operations carried on by the organisation
  – any other activity on a commercial basis carried on by the organisation
  – the use or keeping by the organisation of any plant, vehicle or other thing; and

• duty owed to a person who is being held in lawful detention or custody.

The employer’s duty extends to contractors, secondees and volunteers.

The duty in relation to supplying goods or services will include duties to customers and is intended to cover, for example, duties owed by transport providers to their passengers and by retailers for the safety of their products.

“Construction or maintenance operations” is widely defined to mean operations of any of the following descriptions:

• construction, installation, alteration, extension, improvement, repair, maintenance, decoration, cleaning, demolition or dismantling of:

  – any building or structure
  – anything else that forms, or is to form, part of the land, or
  – any plant, vehicle or other thing;

• operations that form an integral part of, or are preparatory to, or are for rendering complete, any of the operations above.
  

Establishing a duty

Whether or not the organisation in fact owed a duty of care in a particular case will ultimately be a matter for the judge to decide at trial.
The Act makes clear that it will be no defence to assert that the deceased willingly accepted the risk of harm. Similarly rules of law that would prevent a duty being owed by one person to another because they were jointly engaged in unlawful conduct will not apply to this offence.

“Gross breach” of duty — an issue for juries

Where a relevant duty of care is established it will be for a jury to decide whether there has been a gross breach of that duty.

The Act sets out two levels of criteria to guide the jury’s deliberations. The first level is mandatory:

• the jury must consider whether the evidence shows that the organisation failed to comply with any health and safety legislation that relates to the alleged breach, the seriousness of that failure, and how much of a risk of a death that posed.

The second level is optional: the jury may also consider:

• the safety culture of the organisation and whether this is likely to have encouraged the failure;
• any health and safety guidance in relation to the alleged breach; and
• any other matter the jury considers relevant.
  

“Causing a person’s death”

A senior management failure must have caused the death. The ordinary rules will apply - the management failure must make more than a minimal contribution to the death and there must have been no intervening act to break the chain of causation. It does not need to be the sole cause of the death.

What is the penalty for the offence?

The sanction for the offence is an unlimited fine.

The Act also allows the court to order an organisation convicted of the new offence to take steps within a specified timeframe to remedy the management failure leading to the death and any deficiency in health and safety policies, systems or practices indicated by the breach of duty. Failure to comply with a remedial order is also punishable by an unlimited fine.

The court may also make “publicity orders” requiring the convicted organisation to publicise the fact of its conviction along with the size of the fine imposed and the terms of any remedial order made. Failure to comply with a publicity order can also result in an unlimited fine.

Extent

The Act will apply where injuries resulting in death occur within Great Britain or Northern Ireland.

The offence will also cover injuries resulting in death sustained within the seaward limits of the territorial sea adjacent to the United Kingdom, or on a British ship, hovercraft or aircraft or on certain offshore installations.

Who will enforce the new law?

The Act makes clear that no private prosecutions will be possible under the new legislation. Whilst the police will be responsible for investigating, and the Crown Prosecution Service will prosecute, corporate manslaughter, it is envisaged that the police will work with the Health and Safety Executive during their investigation, continuing current arrangements for investigations into work-related deaths.

The Act also requires consultation with “such enforcement authorities as it considers appropriate having regard to the nature of the relevant breach” before making remedial or publicity orders. This reserves a role for the Health and Safety Executive or sector-specific safety authorities in sentencing.

The new legislation will not affect the powers of the independent accident investigators currently charged with investigating air, rail or marine accidents to establish cause and identify safety lessons.

Will the new offence carry more severe penalties?

The new offence will sit alongside existing laws in this area, the principal of these being the Health and Safety at Work etc Act 1974 (HSWA) which imposes general duties on employers. The Act specifically contemplates prosecutions under both the Act and health and safety legislation. An organisation convicted of corporate manslaughter may then also be charged with a health and safety offence arising from the same circumstances.

The elements that need to be proved to achieve a conviction for corporate manslaughter are likely to make securing a conviction for the offence more onerous than a conviction for breaches of the HSWA. Despite this, the penalties for the new offence do not look very different from those under the HSWA.

In terms of penalties/remedies, the proposed corporate manslaughter offence is very similar to HSWA sections 2 and 3. Where a fatality has occurred, it is likely that a prosecution under HSWA section 2 or 3 would be brought in the Crown Court with the possibility of an unlimited fine; the penalty for corporate manslaughter will be the same. If current sentencing trends for HSWA offences continue, there may not be much difference in the penalties for a work-related death under HSWA and one under the Act, except for the stigma of a manslaughter conviction.

The new offence will enable the court to make an order forcing the offender to take specified remedial action. The power to order specific remedial action is already available to enforcing authorities under HSWA, with the same penalties for failure to comply. Under HSWA the enforcing officer does not need to apply to court for such an order. The publicity orders available under the Act are not available under HSWA. The HSE maintains a publicly accessible database listing convictions for breaches of health and safety legislation which detail the fines imposed. The new publicity orders go further in requiring the offender to arrange publication and to specify remedial steps to be taken.