A Work-Related Death Could See Companies Facing new Corporate Manslaughter Charges
After a long and lengthy progression through Parliament, and a lively lengthy debate, the Corporate Manslaughter and Corporate Homicide Act 2007 (the “Act”) received Royal Assent on 26th July 2007. The long title reflects that the offences created will be known as corporate homicide in Scotland (in Scottish law manslaughter is referred to as ‘culpable homicide’) and corporate manslaughter in the rest of the United Kingdom.
Questions and Answers on the provision of the act:
What offence is created by the new Corporate Manslaughter and Corporate Homicide Act 2007?
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 in 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 individuals, and those failings cause a person’s death.
Companies and government bodies face prosecution if they are found to have caused a person’s death due to their corporate failings in health and safety.
How does the Act differ from current law?
The current law links an organisation’s guilt to the gross negligence of an individual who is said to be the embodiment of the company (the directing mind).
It has proven 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 anomaly by focusing the law on the way in which a company’s activities are managed or organised and, therefore, it is not reliant on the one individual being found guilty of gross negligence.
The Courts will now be able to consider the wider corporate picture, looking collectively at the actions, or more appropriately the failings, of the organisations senior management.
Who will be considered to be “Senior Management”?
An organisation will be guilty of the offence if someone has been killed as a result of the gross failure of the organisation’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 regarding how the organisations activities are managed and organised. There has been a lot of debate about what constitutes “Senior Management”. The answer will be different in each case, and will be dependent on the size and structure of the business under scrutiny.
What will amount to a gross misconduct failure?
To secure a conviction, the prosecution must prove beyond doubt that the management failure amounted to a “gross breach” of the duty of care owed to the deceased. When determining this, the just will consider whether evidence shows that the company’s conduct fell far below that which could reasonably have been expected.
Factors that will be taken into account include whether the organisation failed to comply with any relevant health and safety legislation, 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 what were likely to have encouraged, or tolerated, such failings.
When will the Act come into force?
It will come into force on 6th April 2008, and it is expected that the Ministry of Justice will publish further guidance this autumn, aimed at helping employers to understand the implications of the new Act and informing them of their duties under it.
Will the new Act affect individuals?
The 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 offending organisations, with the focus being on the worst case 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 organisations that consistently fail to meet proper standards to improve and provide their employees with safer working environments.
Will the legislation apply to all organisations immediately?
When the Act initially comes into force it will not apply to deaths in custody or those that occur in prison- it is expected that these will be encompassed by revision of the legislation at a later date.
What penalties will a company face?
Penalties include an unlimited fine, remedial orders and publicity orders. A remedial order will require an organisation to take steps to remedy their management failures that have led to death. The Court can also 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.
(Courtesy Peninsula Business Services Ltd.)
