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Proposed reforms to Corporate Manslaughter Bill: do they go far enough?
The notion of ‘corporate homicide' or ‘corporate killing' first surfaced in the late 19th century with workplace deaths in the era of industrialisation. In recent years it has risen rapidly up the political agenda, especially as a result of tragedies such as the Zeebrugge ferry disaster. Indeed, over 300 people per year die or are fatally injured at work, demonstrating that the potential scope for liability is wide. In spite of this there have only been a handful of successful prosecutions of large companies where management failings have resulted in death.
This is because it is necessary to demonstrate that an individual ‘identified as the directing mind of the company' (ie within the upper levels of management) is guilty of murder or manslaughter before the company can be found liable. In large organisations, where many levels of management are involved in decision-making, this is hard to demonstrate.
The Corporate Manslaughter and Corporate Homicide Bill, which is currently progressing through Parliament, seeks to create a new offence of ‘corporate manslaughter' and aims to remedy this problem.
Proposed reforms
The proposed changes will not increase or decrease personal liability - they are aimed at making it easier to prosecute corporations for manslaughter.
The proposed offence will be committed if the way in which an organisation is managed or organised by the senior managers (a) causes a person's death; and (b) amounts to a gross breach of a relevant duty of care (for example, the duty to provide a safe place of work) owed by the organisation to the deceased. For these purposes the usual principles of causation in the criminal law will apply to determine the issue. This means that the management failure does not have to be the exclusive cause of death - it need only be one cause. Any breach of the duty of care must be ‘gross', so there will be no question of liability where the management of an activity includes reasonable safeguards and a death arises in spite of such action.
The intention is to capture those whose role in the relevant management activities is decisive or influential, rather than those who play a minor or supporting role (although failings at a junior level may provide evidence of failure at a senior management level).
Sanctions against the company will be in the form of unlimited fines or orders to take remedial action. It is not proposed that individual directors become personally liable for fines (or imprisonment), though there may be scope for courts to disqualify directors who are specifically implicated in any management failures. The Bill does not affect an individual's potential liability for other offences, such as the common law offence of gross negligence manslaughter, or health and safety offences.
The draft legislation also removes the Crown's usual immunity from prosecution, so that Crown bodies will also be liable to financial penalties.
Comment
In terms of improvements, the removal of complete Crown immunity, the application of the Bill to the police, and clarification of the meaning of duty of care are welcome advancements. However, many argue that the reforms are too conservative and do not go far enough. It has also been suggested that:
- The lack of any clear guidelines on penalties means that fines are likely to be no greater than under existing health and safety law. The deterrent effect is therefore no greater.
- The senior manager test is so narrow that it still remains extremely difficult to secure convictions.
- The failure to introduce secondary liability also dilutes the efficacy of the reforms, since those who knowingly embroil themselves in the commission of the act that results in death may, nonetheless, escape criminal liability.
By Tania Stevenson, professional support lawyer.