Health, Safety & Environment Office
Subject: Briefing
Note -The Corporate Manslaughter and Corporate Homicide Act 2007
Origin: Health, Safety & Environment Office
The
Corporate Manslaughter and Corporate Homicide Act 2007 gained Royal Assent on
26 July 2007. It has had a protracted and difficult passage through the law
making process, taking 10 years of work to come into being. The major
provisions of the Act come into force on 6 April 2008. This briefing note
reviews the Act’s purpose and its implications for health and safety
practitioners and the senior management within organisations that they
advise.
Background
Until the
enactment of this piece of legislation, the prosecution of corporations and
employing organisations for manslaughter was carried out under the common law
offence of Gross Negligence Manslaughter. There are strict qualification and
tests to be applied when considering prosecution for this offence. To charge an
organisation with corporate manslaughter it was necessary to prove that a
“directing mind” of the organisation (that is, a senior individual
who can be said to embody the company in their actions and decisions) is also
guilty of the offence. This is known as the identification principle.
In large
and complex organisations it was often not possible to identify any such
individual and consequently there have
been very few successful prosecutions for corporate manslaughter under existing
legal provisions.
These
shortcomings were highlighted following major disasters such as the capsizing
of the cross channel ferry, the Herald of Free Enterprise in 1987, Piper Alpha
in1988 and train derailments at Ladbrook Grove and Hatfield in the
1990’s. Bereaved families and victims groups lobbied for a change in the
law and pressure mounted not only for the companies to be prosecuted but also
for individual directors and senior
staff to face trial for manslaughter.
It is this
point regarding individual culpability for organisational failure has proven to
be most controversial and it is the lengthy debate on this issue that has lead
to the delay in enacting the Corporate Manslaughter and Corporate Homicide Act.
Features Of The New Legislation
·
The
Act chiefly concerns itself with offences of the organisation and does not
create additional criminal offences for individual directors or senior
officials.
·
“An organisation” … “is guilty of
an offence [of corporate manslaughter] if the way in which its activities are
managed or organised –
a)
causes a person’s death, and
b) amounts to a gross breach of a relevant duty of care owed by
the organisation to the deceased”
The
term “organisation” is wide ranging and includes bodies
incorporated by law or charter, partnerships, trades unions and
employers’ associations, as well as police forces and crown bodies listed
in a schedule to the Act.
·
The Act further declares that:
“An organisation is guilty of an offence …only if
the way in which its activities are managed or organised by its senior
management is a substantial element in the
breach referred to”
This clause
is designed to ensure that only truly corporate failings are caught by the
legislation. Individuals’ liability to the offence of Gross Negligence Manslaughter
will remain where fatalities result from the acts or omissions of natural
persons, rather than from corporate failings.
The identification principle is not relevant in such cases and
consequently current law is considered adequate for these offences.
·
Upon
conviction, the offence of corporate manslaughter may be punishable by an
unlimited fine.
·
The
Act takes context from the common law duty of care. This is a well established
legal concept and it is clear that duty of care owed to individuals such as
students, contractors, employees and visitors will be consistent with duties
owed to these individuals by the Act.
·
The
Act provides guidance to juries when considering cases. It suggests that
juries:
a)
must consider whether the
organisation failed to comply with health and safety legislation relating to
the breach, and if so, how serious that failure was and whether it contributed
to the risk of a fatality.
b)
may consider whether
evidence suggests that attitudes, policies, systems or practices within the
organisation encouraged or tolerated compliance failure
c)
may have regard to health
and safety guidance, including codes, guidance or manuals, issued by an
enforcing authority which relate to the breach.
These three factors are key in setting the context for the
offence and it is clearly the intention
of the Act that the offence of corporate manslaughter should to apply to
strategic failings, where senior managers have knowingly allowed the
organisation to fail in its duties under health and safety legislation, and
have done so deliberately, or by ignoring evidence there was a problem.
·
The Act introduces the concept of publicity orders for the first
time in the context of health and safety regulation. The court may require an
offending organisation to publicise details of their offence and of the
sanction imposed, using media and wording determined by the court and the
regulator. The result might be a requirement for an organisation to pay for
advertising in a newspaper or journal in order to communicate details of their
offence and sentence.
Implications for
The Act
does not introduce new duties or obligations into health and safety law but it
does ensure that corporate failings which lead to death due to breaches of the
existing health and safety legislation are punishable as manslaughter.
It is the health
and safety management structure of organisations that will be exposed by this
Act and it is important that the structure is clear, that roles and defined and
that responsibilities are apportioned appropriately
The Health
and Safety Policy was reviewed and re-issued in December 2006. The policy
requires a biennial review and is therefore scheduled for Dec 2008.
Final
reports on the progress of the 2007/2008 annual plan are scheduled for October
2008 and this will provide a timely opportunity to take stock and ensure that
the management system is working effectively.
Author -
Catherine Moore
Date - Feb
2008
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Loughborough University.