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The Corporate Manslaughter and Corporate Homicide Act 2007
7 April 2008
Yesterday, 6 April 2008, the new Corporate Manslaughter and
Corporate Homicide Act 2007 came into force. Prosecutors will
no longer have to struggle trying to prove that an individual who
could properly be identified as the directing mind of an
organisation is guilty of gross negligence. Instead,
liability for the new offence depends on a finding of gross
negligence in the way in which the activities of the organisation
are run.
The elements of the new offence are:
- An organisation must owe a "relevant duty of care" to the
victim. In particular this includes duties owed to employees,
as an occupier of premises, in the supply of goods or services or
in the use or keeping by the organisation of any plant, vehicle or
other things
- The organisation must be in breach of that duty as a result of
the way in which the activities of the organisation are managed or
organised – the management failure. The Act stipulates that a
substantial element of that breach must lie in the way in which
senior management managed or organised its activities
- The law defines senior management as anyone who plays a
significant role in the making of decisions about how the
organisation's activities are to be managed or organised; or in the
actual managing of those activities. This covers those in the
direct chain of management as well as those in strategic or
regulatory compliance roles
- The failure must have caused the death
- The failure must be gross in that it falls far below what could
reasonably be expected. When considering this the jury must
consider the extent to which the organisation was in breach of its
obligations under health and safety legislation and how much of a
risk of death that failure posed
- The jury may also consider the extent to which the evidence
shows that there were attitudes, policies, systems or accepted
practices within the organisation that were likely to have
encouraged any such failure, or to have produced tolerance of it,
along with any health and safety guidance that relates to the
breach
The sanctions following conviction are:
- An unlimited fine
- A Remedial Order – requiring the organisation to address the
deficiencies in health and safety management that lay behind the
breach
- A Publicity Order – requiring the organisation to publicise
details of the offence
Whilst each case will turn on its own facts the definition of
senior management is broad enough to include those in senior
operational management and those carrying out monitoring or
strategic roles such as non executive directors.
During any corporate manslaughter investigation the police will
need to gather evidence from and about senior managers which is
likely to include members of the board. If an organisation were
prosecuted those individuals could then become embroiled in giving
evidence at any public trial. The potential reputational damage of
such an exercise both corporately and individually is all too
obvious.
In the event of conviction fines will be significant. The
current proposals are for fines of up to 10% of turnover.
In addition whilst there is no increase in personal liability
under the new legislation, the existing law allows for such
liability in any event under the law relating to gross negligence
manslaughter, or under the Health and Safety Legislation ie Section
37 or 7 of the Health and Safety at Work Act 1974.
With a view to avoiding the serious repercussions of a
prosecution, organisations may wish to satisfy themselves that they
have reviewed the following:
- Health and safety guidance applicable to their business or
undertaking. This includes guidance available for the board itself.
Boards may wish to consider ‘Leading Health and Safety at Work
: leadership actions for directors and board members’ recently
published by the Institute of Directors and Health and Safety
Commission
- The structures in place to identify risks and put in place
procedures to manage them effectively
- Reporting procedures to the board – in particular on matters
relating to health and safety
- Systems for ensuring recommendations from serious untoward
accidents or near misses are implemented
- Systems for recruitment of competent staff, ongoing training
and supervision
- The health and safety culture in the organisation, with a view
to encouraging a positive and responsible approach to health and
safety. In particular no one should take on health and safety
responsibilities that they are not competent to undertake
- Insurance cover in the event of a corporate manslaughter
investigation or prosecution
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