After numerous Parliamentary debates and despite fierce Government opposition to demands to extend the scope of the Bill to include deaths in custody by the House of Lords, the Government acceded to the House of Lords demands to facilitate a Corporate Manslaughter and Corporate Homicide Bill making its way onto the statute books. The Bill is due to receive Royal Assent within days.
This article takes a brief look at what the Act provides, and how companies should react in the light of the new offence.
What Amounts To Corporate Manslaughter?
The new offence of corporate manslaughter – or corporate homicide in Scotland – is stated under the Act to have been committed in circumstances where:
- An organisation owed a duty of care to the deceased person
- The way in which the organisation’s activities were managed or organised:
- caused the death
- amounted to a gross breach of the duty of care owed.
"Organisation" is defined to include corporations (ie all bodies corporate other than corporations sole); the police force (including the British Transport Police and Ministry of Defence Police forces); and a number of Government departments/ bodies listed in Schedule 1 to the Act. Such departments include the Crown Prosecution Service, the Department for Constitutional Affairs and the Department for Transport, all of whom are to be treated for the purposes of the Act as if they were a body corporate.
In order to secure a conviction against an organisation, it must be proved that:
- the way in which the organisation’s activities were managed or organised by the senior management was a substantial element of the breach
- the breach of duty was "gross" – ie that the conduct of the organisation fell far below what could reasonably have been expected of them in the particular circumstances.
By "senior management", the Act envisages those persons who play a "significant role" in either making decisions concerning the management of the whole or a substantial part of the organisation’s activities, or who are actually engaged in such management or organisation. This is said to specifically include management at regional level within a national organisation.
The circumstances in which an organisation will owe a duty of care is wide-ranging; the Act includes duties of care owed by organisations to their employees or other workers; duties owed as the occupier of premises, and duties owed in connection with the performance of any construction, maintenance or other commercial activities, or the supply of goods or services.
It is clear that the Act is drafted with the aim of bringing most corporate entities and commercial acitivites within its application.
The New Burden Of Proof
Historically, for gross negligence manslaughter to have been committed by a company, the prosecution had to identify a senior manager or director as the "controlling mind" of the company, and that the acts or omissions of that person were grossly negligent and causative of the death. Only upon proof of all of those components could the prosecution secure a conviction against the individual nominated by the prosecution as the controlling mind and the company.
However, to date there has not been a successful conviction of a senior manager or director of a large company arising out of any of the well-publicised, largescale disasters, such as the Southall, Paddington and Ladbroke Grove rail crashes. This is because, under the existing law of manslaughter in a corporate context, aggregation of culpability was not possible – in other words, the separate failures of numerous individuals could not be taken together in order to secure a conviction against the company on the basis of systemic management failure. Whilst systemic management failure may have been demonstrably present under the old regime, the law was structured in such a way as to concentrate only upon the gross negligence of a single individual and hence in a large company with a diverse and complex management structure, the causal link between the gross negligence and death proved almost impossible to make out.
The only successful convictions under the existing law to date involved directors of small companies comprised of one or two directors, where the management structure was unsophisticated and therefore the "controlling mind" was easily identifiable.
The Act does not seek to impose imprisonment as a sanction, much to the dismay of many who believe that, in the wake of the recent speight of rail disasters mentioned above, directors and/ or senior managers ought to be brought to account personally for the organisation’s failures which have lead to death. Instead the Act provides for an unlimited fine, which may be coupled with "remedial" and "publicity" orders. Such orders allow the courts, in the first, to force a defendant organisation to take steps to remedy the failures which are found to have caused or contributed to death, and in the latter, to require them to publicise details of the conviction - including the amount of any fine.
Whilst the Act has been criticised for its failure to bring directors or senior managers personally to account, the new provisions adopt a different approach by permitting aggregation of culpability so as to enable a conviction of manslaughter against a corporate entity, based on systemic management failure. It is no longer necessary to demonstrate gross negligence on the part of an individual; under the new legislation, it will be enough for the prosecution to show that an aggregation of failures in management systems and procedures as a whole amounted to a gross breach of duty. In determining culpability on this basis, the Act entitles the jury to consider whether there is evidence of "attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure...or to have produced tolerance of it".
The jury is further required to consider any breaches of relevant health and safety legislation; the compliance gap that existed – ie the degree to which the defendant failed to comply with the law, and the likelihood of the risk of death that was posed by the failure.
Corporate Manslaughter Bill – How This Complements The Existing Regime
The new provisions of the Act are intended to complement rather than replace the old regime, which means that the composite regulatory framework will be comprised of:
- Prosecution for "old style" manslaughter in a corporate context. This will still be possible for small companies, where the gross negligence of a director causes the death of an employee or a member of the public
- Prosecution of offences under existing health and safety legislation – most notably under Section 37 of the Health and Safety at Work etc Act 1974, which allows for directors and senior managers to be prosecuted (and fined – no imprisonment) where the offence, committed by the company, was committed with their consent, connivance or neglect
- Prosecution for corporate manslaughter under the "new regime" introduced by the Act.
This therefore means that directors of small companies – who can be identified as the "controlling mind" - will still be in the firing line for common law manslaughter, whilst the historical immunity against prosecution of directors of larger companies has now been enshrined in the new provisions of the Act, where the company, rather than the individual, is the intended offender. In the case of larger companies therefore, senior managers and directors may be able take solace in the fact that they will not face individual prosecution under the Act for corporate manslaughter, even if it could be shown that their acts or omissions contributed to the relevant management failures that lead to the death.
However, due to the way in which the new offence of corporate manslaughter is structured, with scrutiny of the wider management systems of a company, it is likely that individual failings that have been revealed during the manslaughter investigation may lead to prosecutions of individuals within middle management under Section 37. The new provisions do not mean that senior managers and/ or directors will escape prosecution altogether.
In this way, it can be said that a two-tier system of justice exists following the implementation of the Act, which differentiates between how directors and senior managers of large and small companies are punished in the event of culpability arising from a death caused by the company’s management of the health and safety component of its business activities.
Safeguards: Protecting The Company’s Position
It is clear that the punitive aim of the Act is to make it much easier for a company to be convicted for corporate manslaughter, and for the fine imposed to be unlimited so that it may accurately reflect the extent of the breach and circumstances of the death.
Whilst most companies are likely to feel nervous at the enactment of the new offence, it should be remembered that the aim of the Act is not to try to "upgrade" serious corporate health and safety offences to the crime of corporate manslaughter; companies will only be prosecuted under the Act if their management and organisation was such that it amounted to a gross breach of duty which caused death. The criminal standard of proof beyond a reasonable doubt applies.
The remaining possibility of prosecution for manslaughter of directors of small companies is self-evident, equally senior managers and board members of larger companies must not rest on their laurels: to avoid prosecution under the composite regime as outlined above, companies will need to show that they have an effective health and safety management system, transparent procedures and defined lines of reporting and responsibility, which are adhered to. An effective health and safety management system may be demonstrated by ensuring that:
- Risk assessments, systems of work and all other policies and procedures are comprehensive, workable and documented
- Clear and effective lines of communication are maintained at all levels
- All company roles and responsibilities are defined and understood
- Staff and management at all levels are trained not only in the specifics of their job, but also in all relevant health and safety policies and procedures
- Regular and effective systems of reviewing all policies and procedures, and monitoring and enforcing the requisite compliance must be implemented and maintained.
The Government has envisaged that the number of prosecutions under the Act will be as few as ten per year; of course, the hope is that all organisations - corporate entities, police forces and government bodies alike – will use the implementation of the Act as an opportunity to review and revitalise their health and safety management and procedures so as to ensure there is no room for liabililty for corporate manslaughter, should they experience an unfortunate incident in the future.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
