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As indicated in the Regulatory Impact Assessment, it is intended that the Corporate Manslaughter and Corporate Homicide Act 2007 will offer a more effective means of holding organisations to account for gross management failings causing death than was currently provided under the old law of manslaughter in England and Wales and Northern Ireland and culpable homicide in Scotland.
In practice, it is very difficult to prosecute large corporations for gross negligence manslaughter/culpable homicide because the law required proof that a "directing mind" (an individual at the very top of the organisation who can be said to 'embody its decisions or actions') is guilty of the offence. Criminal liability can now be attributed where the way the organisation's activities were managed or organised by its senior managers was grossly in breach of a duty of care it owed a person, causing their death
Where appropriate, prosecutions against individuals will continue to be possible for existing offences - including manslaughter/culpable homicide and health and safety offences using existing legislation. The proposals do not require any new standards to be met and if you currently comply with the intent of the law you have nothing to fear!
Understanding the offence
If you are a "senior manager" of an organisation, that is if you play a significant role in the making of decisions regarding all or a substantial part of organisations activities, and if you are seen to be acting or assisting in the performance of an unsafe act, namely a 'gross breach' (see below) then you can be charged with manslaughter if an incident involves death of an individual.
To decide that question, the jury must consider whether the evidence shows that the organisation failed to comply with any relevant health and safety legislation or guidance.
The Act also sets out a number of factors which a jury must consider, such as whether or not senior managers sought to cause the organisation to profit from its failure, by deliberately cutting corners for example to reduce costs to improve profit.
The law will affect companies supplying services, as well as employers and occupiers of land, which will include premises and building sites. It will also apply to a range of Government departments and other Crown bodies.
The history
It would be a mistake to think that the possibility of a manslaughter charge is an exclusively modern phenomenon. In the mid 19th century a Yorkshire inquest jury expressed regret that a water board could not be prosecuted for manslaughter following 78 deaths when a reservoir burst, and Cory Brothers were prosecuted in 1927 following the electrocution of an unemployed miner during the 1926 strike. The judge held that a corporation could not be indicted for an offence against the person, a ruling that was overturned in the P&O prosecution.
The government first announced its intention to legislate a new corporate killing offence shortly after the Southall crash in 1997. It was not until 2000 that the Home Office produced a Consultation Paper adopting, in the main, the 1996 Law Commission proposals. This coincided with the unsuccessful challenge in the Court of Appeal to the narrow interpretation of the common law principles of corporate liability in the GWT trial - a ruling that confirmed the need for legislative intervention if this area of law were to be reformed.
Under the Law Commission's formula of management failure, a corporation is guilty of corporate killing if it is caused by a management failure, and that failure constitutes 'conduct falling far below what can reasonably be expected of the corporation in the circumstances'. There is management failure if the way in which a company's activities are managed or organised fails to ensure the health and safety of persons employed in or affected by those activities. The failure may be regarded as a cause of a person's death notwithstanding that the immediate cause is the act or omission of an individual.
An analogous approach is found in the concept of 'corporate culture' pioneered by the Australian Law Reform Commission in the Criminal Code Act 1995(C'th). Australia became the first state to introduce an offence of Industrial Manslaughter relying on this new rule of attribution. 'Corporate culture' can be found in 'an attitude, policy, rule, course of conduct or practice within the corporate body generally or in the part of the body corporate where the offence occurred. Evidence may be led that the company's unwritten rules tacitly authorised non-compliance or failed to create a culture of compliance'.
Corporate liability
Another question is the relationship between the liability of a corporation itself and that of individuals within it. Should it be either/or, or both? Some of the relatives of those who drowned at Zeebrugge were concerned at the time of the inquest that the blame should not be borne by those who operated the ship but by the company who managed both them and the ship.
On the other hand, the experience of the Health and Safety Executive suggests that corporate liability allows companies and their directors to evade rather than to take responsibility.
How can this be reconciled?
The answer lies partly in the nature of the offences concerned and partly in differentiating between directors and senior managers and other employees. Given that the existing manslaughter offence is still available, individual directors will not be liable under the new corporate killing offence.
As previously indicated, the Act does not change regulatory requirements currently placed on organisations or individuals and consequently will not impose any new burdens. The only impact arising from the Act will be that affecting employers and others who do not already have adequate health and safety management arrangements in place.
The Act integrates the new offence with both common law duties of care owed in respect of particular activities and health and safety standards as the benchmark against which a company's culpability is to be assessed.
The conscientious employer can now be confident that if they comply with health and safety legislation and the standards the Act gives, they will not be liable for the new offence.
Contact us for information on how we can help you with any boardroom or senior managers' briefings for anything from a 1 hour breakfast meeting through to one day awareness course.
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