Corporate Manslaughter

The Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008.

Pressures for the Government to improve the ability of the law to successfully prosecute companies for fatalities caused at work through poor organisation or management of the companies’ activities, date back to the Herald of Free Enterprise ferry disaster and the collapse of the case against P&O Ferries. Since that time, the inadequacy of the law was again highlighted by the failure to prosecute Balfour Beatty and 5 senior railway executives for the Hatfield rail crash.

Previous to the Corporate Manslaughter and Corporate Homicide Act, for a company to be successfully prosecuted for manslaughter it had to be proved that a senior manager in a position of control, or who could be regarded as a ‘controlling mind’, was guilty of gross negligence. The fact that an employee was guilty of such negligence was insufficient to ensure
prosecution against a company.

The Act removes the need for a ‘controlling mind’ to be established for a company to be guilty of negligence and, therefore, it should now be simpler for a successful case of manslaughter to be brought against a company.

The Act does not, however, replace the existing law or penalties that can be applied to Directors and Managers for breaches of Health and Safety legislation.

The Offence

An organisation is guilty of an offence if the way in which its activities are managed or organised:

• causes a person’s death, and
• amounts to a gross breach of a relevant duty of care owed by the organisation to that person.

A ‘relevant duty of care’ is defined as:

• a duty owed to its employees or to other persons working for the organisation or performing services for it.
• a duty owed as occupier of premises.
• a duty owed in connection with:
  
  • the supply by the organisation of goods or services (whether for consideration or not)
  • the carrying on by the organisation of any construction or maintenance operations
  • the carrying on by the organisation of any other activity on a commercial basis, or
  • the use or keeping by the organisation of any plant, vehicle or other thing
• a duty owed to other persons who are under detention or in secure accommodation.

It is clear, therefore, that a company does not only have a relevant duty of care to its employees but also those carrying out work for the company under contract and may also have a relevant duty of care to members of the public under certain circumstances.

It is again clear that the law also applies to any organisation providing goods or services, regardless of whether the goods or services are paid for or provided for free.

Avoiding Prosecution

The way to avoid prosecution is to ensure that you have taken all the actions that you would be expected to take to meet your duty of care.

These actions are the same ones you would be expected to take to comply with existing Health and Safety legislation including:

• provision and maintenance of a safe workplace and safe equipment, vehicles, plant and tools.
• provision of safe working procedures.
• provision of instruction and training to ensure staff are competent.
• risk assessing activities and ensuring suitable control measures are in place that eliminate or minimise any risks identified.
• if required, providing appropriate PPE.
• making sure employees are adequately supervised to ensure they are following safe working procedures and are using any required PPE.

The above actions are, however, not enough and you will need to provide proof that they have been carried out by keeping:

• records of maintenance of the workplace, work equipment, vehicles and plant.
• written evidence of safe working procedures.
• staff training and assessment records.
• written risk assessments.
• where applicable, records of PPE issued.
• records of Health and Safety inspections, audits and monitoring.

If you can demonstrate that you have done everything reasonably practicable to meet your duties under Health and Safety legislation, then it is unlikely you would be liable for prosecution for corporate manslaughter.

Application to Road Traffic Accidents

There has been much speculation as to whether a company could be found guilty of corporate manslaughter as a result of a fatality caused by a road traffic accident involving a company vehicle.

Information from the Crown Prosecution Office advises that, in cases where the accident involves negligence on the part of the driver, the driver would be prosecuted for death by dangerous driving under the Road Traffic Act. If the vehicle involved was used intentionally as a weapon, then the charge against the driver would be unlawful act of manslaughter or if intent can be proved, murder.

Where, however, the death has been the result of a road accident caused by a vehicle defect then the company could be liable for prosecution for corporate manslaughter for failing to adequately maintain the vehicle.

Investigation and Prosecution

The police will be responsible for investigating suspected cases of corporate manslaughter and the decision to prosecute will be made by the Crown Prosecution Office (England and Wales), the Crown Office and the Procurator Fiscal Service (Scotland) and the Director of Public Prosecutions (Northern Ireland).

Penalties

There are 3 types of penalties that can be applied to organisations prosecuted of corporate manslaughter as follows:

• unlimited fines
• remedial orders
• publicity orders.

Remedial orders will require organisations to take actions to remedy any failures in management that led to a death.

Publicity orders will not be able to be imposed until guidance has been produced by the Sentencing Guidelines Council. A publicity order will require the organisation found guilty of corporate manslaughter to publicise that it has been convicted, together with the details of any fine and the requirements of any remedial order imposed.

Can the Act be Applied Retrospectively?

The Act can not be applied retrospectively, therefore, any death at work that occurred prior to 6 April 2008 will be covered by the law in force at that time.

When will the First Case Come to Court?

It is estimated that it will take 4 to 6 years before the first cases under the Act will be heard in court, however, cases of death at work can now be investigated as possible corporate manslaughter.