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

Browne Jacobson will be holding a seminar on implications of the Act on 1 July 2008 and details will soon be published on the seminars area of the website. In the meantime if you wish to discuss the new legislation in any detail please contact Andrew Hopkin.

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.