Putting Safety First

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The Corporate Manslaughter and Corporate Homicide Act 2007

Introduction

This new Act came into force on 6th April 2008.  An offence is committed if the manner in which an organisation manages or organises its activities causes a person’s death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.  This is a corporate crime and not an individual crime.  There is now no need to identify a person controlling or directing the mind of an organisation, who is also guilty of the offence of gross negligence manslaughter, before the corporation can be convicted of the same offence.  The only sentencing option available to the court on a corporate manslaughter conviction will be a fine.  However, it is envisaged that considerable stigma will attached to a conviction. In addition senior management might feel compelled to resign and if they do not resign there are likely to be grounds for dismissal of some or all of the senior managers responsible for the gross breach of duty.

Details of the ‘new’ offence

The way in which the organisation is managed by its senior management has to be a substantial element in the breach of the duty of care.  It is a matter for the judge to establish whether a duty of care is owed.

Factors to be taken into account by the jury are whether there has been a breach of any relevant health and safety legislation, the seriousness of the breach and how much of a risk of death was posed by it. The jury may consider whether the culture, policy, systems and procedures in the organisation encouraged failure to comply with health and safety regulatory legislation or guidance.

Senior management means either those who play a significant role in making decisions about how the whole or a substantial part of the organisation’s activities are to be managed or organised, or those who play a significant role in the actual managing or organising of the whole or a substantial part of those activities.

Under Section 9 of the Act it is open to any court convicting of corporate manslaughter to make an order, called a remedial order, requiring the organisation to take specified steps to remedy the breach, to remedy any matters which contributed to the cause of death, and to remedy any deficiency in the organisation’s policy, systems or practices relating to health and safety.

Under Section 10 of this Act the court has a power to order an organisation to publish the fact that it has been convicted of the offence, to specify the particulars of the offence, the amount of any fine imposed and the terms of any remedial order made.

Commentary

The Act is clearly a reaction to a long held belief that those who put profit before safety at the expense of lives should suffer a sanction more significant than can be imposed by the Health and Safety at Work Act 1974. The clear target at the time of the consultation and publication of the bill was large organisations whose activities cost life where there should have been no such risk.

The offence will now be committed if the breach that is a substantial cause of the death can be placed at the door of senior management who make the decisions about how an organisation is run from a strategic level, or is made by those at a senior operational level.  The Act is not designed to produce a prosecution in circumstances where appropriate strategic management exists, and appropriate operational management exists, but a significant failure is made at a junior operational level.

A more detailed version of the above article will be incorporated into the AGS Loss Prevention Working Group Tool Kit, but until then, if more details are required, please contact Berrymans Lace Mawer on the AGS Legal Helpline.