A look at the new Corporate Manslaughter Act

Mark Tyler | Feature | HSW
15.10.2007

The Corporate Manslaughter and Corporate Homicide Act 2007 at last received Royal Assent on 26 July 2007. Few law reform projects have had a history as long as this one. The new legislation has its roots in proposals made by the Law Commission in 1996, and the Labour manifesto for the 1997 election. The government's principal aim has been a simple one - to make it easier to convict organisations for deaths caused by negligence by removing the onerous requirement to prove the personal and individual guilt of manslaughter of one of the "controlling minds" at the highest levels of management.

Even now, the Act is still not yet implemented. The main provisions are expected to come into force on 6 April 2008. The most controversial aspect of the legislation - its application to deaths in custody, which led to the protracted procedural "ping-pong" between the House of Commons and the House of Lords that held up the enactment - will be subject to further delay. The government has said it will be up to three years before these provisions take force.

Change, no change

Some may find it surprising that for all the protracted debate and public attention the reform process has received, there are actually no new obligations, safety measures or management processes built into the Act.

The new offence's wider significance shouldn't be underestimated; it removes some of the perceived obstacles to bringing successful prosecutions. But after stripping out the large amount of technical detail, as far as companies are concerned, the Act imposes no additional regulatory burden.

Arguably the Act's main effect is to alter the corporate risk profile by reclassifying conduct that is already an offence under health and safety legislation as the new - and more stigmatising - grave criminal offence of corporate manslaughter (or, in Scotland, corporate homicide).

The change which the Act heralds for organisations which are not corporations, particularly in the public sector, is more fundamental. The "old" common law offence of manslaughter was confined to individuals and corporate bodies. The new offence extends to:

• partnerships (irrespective of their size)
• trade unions
• employers' bodies 
• police forces
• government bodies (such as the Ministry of Defence, along with 47 other listed departments and bodies listed in the Act).

These will, for the first time, face collective criminal responsibility for deaths and will be vulnerable to prosecution for manslaughter. Government bodies are nevertheless afforded protection by matters of public policy and by certain actions in the exercise of an exclusively public function not being deemed relevant duties of care.

The new offence will be committed by a relevant organisation (a company, or another body as outlined above) "... 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."

This is the core provision in the Act but it is not as simple as it might appear, as numerous subsequent provisions then narrow down its scope or affect the way it has to be interpreted and applied by the courts.

Senior management failures

The term "management failure" is not used in the Act, but it is clear that the offence is aimed at systemic failures to manage safety in organisations. The way the Act confines the offence in this manner is to include a provision which requires the way in which an organisation's activities are managed or organised "by its senior management" to be a substantial element in the breach of the duty of care owed to the deceased.

"Senior management" here means people who play significant roles in making decisions about how the whole or a substantial part of the organisation's activities are managed, or in the actual managing or organising of the whole or a substantial part of the activities.

Precisely who will count as senior enough for these purposes is one of the Act's conspicuous grey areas. What is clear, though, is that the new offence will not apply to deaths due primarily to the negligence of a co-worker or which come about for any reason that cannot be laid at the door of managers with confined line-management responsibilities.

The association of the new offence with senior managers' deficiencies has been condemned by some critics for retaining elements of the old offence, which required the identification of the corporation with a personal offence by one or more of its "controlling minds" (something which has been notoriously difficult to prove in practice).

For many others, however, the rationale of a corporate manslaughter offence is the punishment of socially unacceptable attitudes to risk at leadership level of organisations.

Crucially, the Act does not require proof of any individual being guilty of an offence as did the old law, and it permits the aggregation of what might be a series of collective errors to allow the conclusion to be reached that the defendant was organisationally criminally deficient.

Duties of care

The government was keen to avoid complicating the reform process by introducing new obligations. It saw this as unnecessary because the offence could be built on breaches of existing and well recognised safety obligations.

Rather than define these obligations in terms of the statutory duties contained in the Health and Safety at Work Act, it chose instead to carry forward the approach used in the common law offence of manslaughter, which is to render criminal gross breaches of civil duties of care. The circumstances under which the duty of care applies are shown in the box on page 46.

In a slight modification to the civil law, the Act disregards the rule that there is normally no duty owed to someone who voluntarily accepts a danger (as in certain sports or adventure activities).

This merely brings the Act into line with health and safety legislation, which concentrates on risk reduction irrespective of whether or not participants are aware of dangers or signed waivers accepting them.

In cases where an employer is charged with the death of an employee, or a railway company is accused over a train crash, the existence of a relevant duty of care will nearly always be straightforward. The same scenarios could, though, involve a number of organisations all with overlapping duties (as in a construction project) which could lead to cases with multiple defendants.

Safety consultants could be included among defendants - as suppliers of a service - if their advice or inspections are deficient.

Interestingly though, the way the relevant duties have been categorised would almost certainly preclude charges being brought against the HSE, fire authorities or other regulatory bodies for any negligent discharge of their duties as regulators, for example in carrying out inspections or not following up concerns about safety standards.

The Act has special provisions which limit the duties of care of the police in law enforcement activities and which exclude fire brigades, ambulance services and other emergency services for the way they respond to emergencies. But these bodies are still subject to the Act (with limited exceptions for the police) when it comes to the safety of their own staff and premises.

Breach of duty

One challenge the government faced was how to set the "gravity threshold" for the offence in a way that marked it out as being distinct from lesser health and safety offences. This proved problematic and the formula adopted in the Act has maintained the concept of "gross negligence" from the common law offence, but adapted it. A breach of duty by an organisation will be "gross" for the purposes of the new offence "if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances."

The difficulty in applying such a broad standard across a wide range of potential circumstances, and different kinds and sizes of organisations, is alleviated a little by other provisions of the Act which are intended to steer a jury in its deliberations.

A jury must consider whether the evidence shows an organisation failed to comply with relevant health and safety legislation, how serious that failure was and how much of a risk of death it posed.

The jury may also go on to consider "the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices in the organisation that were likely to have encouraged any such failure or to have produced tolerance of it" and they can also take into account any health and safety guidance that relates to the alleged breach.

These factors are not meant to be exclusive. The Act states that they do not prevent the jury from having regard to any other matters they consider relevant. There are other factors listed in earlier drafts of the legislation which juries could well be persuaded to look at: for example, whether managers knew of the risks, or whether they sought financial gain for the organisation from the failure to comply with health and safety legislation.

As prosecutions under the Act increase, we are likely to see attention focusing on how judges should appropriately direct juries to focus their attention on the evidence relating to management action (or inaction) to control risks, and not simply the tragic loss of life. Some jurors, faced with a harrowing case, may otherwise find it hard not to infer the defendant must have, in the circumstances, "fallen far below" the standard reasonably expected.

Duty of care

A "relevant duty of care" for the purposes of the new Act is essentially any duty owed under the law of negligence to the person who has died, as long as it is a duty falling within four broad categories:

• a duty owed by an organisation to its employees or others working for it (such as contractors)
• a duty owed as an occupier of premises 
• a duty owed in connection with various activities: supply of goods or services; construction or maintenance work; use or keeping of plant, vehicles or other things; and any other activity carried out on a commercial basis 
• a duty for the safety of someone who is in custody or otherwise detained (which includes not just offenders but also mental health patients or those held for immigration reasons).

Penalty kick

The main penalty specified for the offence is an unlimited fine. This is no different from the penalties for serious offences under health and safety legislation. (The whole scope of penalty regimes for companies is subject to a separate review, as the fines are recognised as a very limited option which in themselves may not impact greatly on a large organisation. Fining public sector bodies has obvious disadvantages as it hampers their ability to provide services and merely redistributes taxpayers' money inside the Exchequer).

The Act's provisions enabling courts to make "remedial orders" against convicted organisations have been highlighted as an additional sanction, but the same power already exists in health and safety legislation and is, in practice, redundant given that by the time matters have come to court, defendants have either voluntarily corrected the breaches or have been forced to do so by enforcement notices.

"Publicity orders", however, are a novel feature; the Act will allow the courts to require convicted organisations to publish details of the offence and penalties. The power is left remarkably open-ended in terms of the medium of publication and the cost to the defendant.

Individual effect

The new law has no impact on individual liability, neither for directors nor anyone else in an organisation. The Act goes so far as to specify that no individual can be convicted of aiding, abetting or otherwise encouraging the corporate offence. But this does not mean that directors and other senior executives can breathe a sigh of relief: in practice, prosecutors will target them in the same way they would have done before if they are suspected of having committed the offence of common-law manslaughter personally - that is, for gross negligence in the conduct of their management roles.

So it will remain common for directors and other individuals to appear as co-defendants in cases with their organisations; and, as individuals, they face the extra risk of imprisonment and disqualification from holding directorships.

One indirect effect of the Act will be to cause organisations to concentrate on exactly where safety management responsibilities lie, how they are delegated and monitored, and the provision of high-level training in safety management (see the article on senior management training in the training and communications supplement with this issue).

This all stems from the need to ensure that all those who could be classed as senior management personnel are in a position to control risks, and that the organisation can demonstrate the correct "attitudes, policies and systems" should the need to defend itself ever arise.

Next month's HSW will look at the Act's implications for safety management and how organisations can mitigate the legal risks.

Mark Tyler is a partner at Shook Hardy & Bacon International LLP, mtyler@shb.com