Corporate Manslaughter and Corporate Homicide Act 2007

31 August 2007

In April 2008, the Corporate Manslaughter and Corporate Homicide Act 2007 will finally find its way onto the statute book. 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 explanatory notes to the Act make it clear that supply of goods or services specifically includes the provision of medical treatment

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 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 may consider the extent to which the organisation was in breach of its obligations under health and safety legislation

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

The Act specifically excludes certain matters from the ambit of the offence. Only interpretation of the legislation by the Courts will truly dictate how these exclusions will apply but as regards NHS bodies the following may be relevant:

Decisions of public policy taken by public authorities are excluded – the explanatory notes state this might for example include decisions by Primary Care Trusts about the funding of particular treatments

Emergencies – the Act does include a section aimed at the emergency services which is intended to limit the circumstances in which certain organisations including most NHS bodies, risk exposure to prosecution under the new law when responding to "emergency circumstances". The explanatory notes indicate that the effect of the exemption is therefore to exclude from the offence matters such as the timeliness of a response to an emergency, the level of response and the effectiveness of the way in which the emergency is tackled. However, the exemption does not extend to the carrying out of medical treatment itself or to decisions about this (other than decisions that establish the priority for treating patients).

Issues for NHS bodies to consider include:

That hospital trusts and other relevant NHS bodies will be subject to the new law

Such organisations may in very limited cases benefit from exemptions or exclusions but in general matters relating to the organisation and management of medical services will be within the ambit of the offence

There is no increased personal criminal liability but the existing law allows for such liability in any event under the individual 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

In the event of prosecution the evidence given in the Crown Court must in part focus on the way in which senior management acted

Where management of an activity includes reasonable safeguards, in particular compliance with health and safety legislation and guidance and death none the less occurs there should be no question of prosecution and conviction

It is not expected that more than 10 to 15 prosecutions might be brought in any year

For more information please contact Andy or Hazel

The content of this bulletin is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.