Corporate Manslaughter and Corporate Homicide Act 2007
The new Corporate Manslaughter legislation is the biggest change to Health and Safety law for decades, write Stuart Ponting and Poppy Williams
The new Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008, in response to continued government criticism that health and safety legislation, and the common law offence of corporate manslaughter, is wholly inadequate to deal with the most serious of tragedies.
The Prosecution had to prove, beyond reasonable doubt, gross negligence manslaughter by an individual who is part of the ‘directing mind' of the organisation that caused or contributed to the death. This has proved to be an almost insurmountable task.
The new offence of Corporate Manslaughter (or Corporate Homicide as it is termed in Scotland), however, will be committed if the way in which a business' senior managers organise or manage the activities, causes a person's death and this amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
How does it affect me?
The new law will affect almost all businesses, including partnerships and trade unions or employers' associations that are employers.
The new law aims to make the corporate identity accountable for manslaughter, but does not change the accountability for individual directors or senior managers. Consequently, only the organisation itself can commit an offence under the new legislation. Beware, this does not mean that individuals are exempt from prosecution for manslaughter altogether. Individuals, including directors and senior managers can still commit an offence of gross negligence manslaughter under the common law. With the ingredients of the new corporate manslaughter offence having such a focus on the acts or omissions of senior managers, it seems logical that they will be the centre point of any manslaughter investigation by the police.
Do I have new obligations?
There are no new obligations imposed upon businesses under the Act. Under the new law, a duty of care will be owed by an organisation to the deceased under the same circumstances as is already owed under the law of negligence.
The Act is most importantly intended to allow prosecutions for the offence of corporate manslaughter to be brought more easily than under the existing common law.
Are there any costs involved?
Some might say that if your business is already operating within the law, under the current health and safety legislation, then it should not cost you anything. However, how many businesses can honestly state, and be absolutely sure, that their safety management systems and the implementation of them from Board level to the shop floor, are completely compliant with current legislation?
A realistic and much wiser approach, would be for organisations to prepare themselves for the new law by undertaking a complete and thorough review of their safety management systems, and of how they are practically implemented. This will necessarily incur costs, but these costs are likely to be a fraction of any potential penalty if found guilty of corporate manslaughter.
What do I have to do?
A review of a business' health and safety management systems - internally or by hired in help -against current industry standards and guidance will identify whether there is more to be done. It would be wise to consider where your business' particular risk areas are to ensure that sufficient attention is paid to eliminating or minimising those risks.
I'm only a small business, surely I'm exempt?
There is no exemption for a small business whatsoever. If your business is incorporated or a partnership, or a trade union or employers' association (an employer) you will be caught by the Act. If your business does not come within any of the above, remember that individual liability for gross negligence manslaughter, under the common law, will still attach to those within the business.
In fact, as is the position under the existing common law in relation to corporate manslaughter (which will not apply to organisations when the Act comes into force) smaller businesses may be at a higher risk of prosecution because there is a shorter chain of command, senior managers are more readily identifiable and those senior managers tend to have wider remits, and therefore more control over areas of the business.
What happens if I do nothing?
While the new Act does not provide for individuals to be prosecuted, the existing common law provisions relating to individual manslaughter will remain in force. Where the prosecuting authority believes that there are individuals at fault, they are likely to be prosecuted with the corporate defendant. Individuals can be imprisoned if they are found guilty of individual manslaughter.
What are the penalties?
The Sentencing Guidelines Council, which is responsible for providing the Courts with sentencing guidance, has suggested that on conviction for an offence of Corporate Manslaughter, the court, as a starting point, should impose a fine which is equal to five per cent of the organisation's annual turnover (with the ability to go up to 10 per cent or more if there are aggravating factors).
In addition to a fine, courts can compel the organisation to ‘advertise' their conviction in the local or national press on the basis that a ‘name and shame' culture may send a message to other businesses.
Further, where a court is also of the opinion that the organisation still has not remedied their deficiencies (although it is likely the Health and Safety Executive would have dealt with any perceived deficiencies much earlier) the court can issue a remediation order that forces the company to remedy the breach, any matter resulting from the breach and relating to the cause of death or any deficiency of which the breach is an indication.
Where can I find out more?
There is a considerable amount of information and guidance in the public domain which will assist all businesses into familiarising themselves with the issues that the new law raises. Below are two such web links of interest.
http://www.hse.gov.uk/corpmanslaughter/index.htm
http://www.opsi.gov.uk/acts/acts2007/ukpga_20070019_en_1
Stuart Ponting and Poppy Williams are solicitors in the Litigation and Regulatory Group of international law firm DLA Piper LLP. Stuart.Ponting@dlapiper.com / poppy.williams@dlapiper.com
