Safety statistics in the UK construction industry make grim reading: construction is now the second most dangerous industry sector in the UK. The Construction (Design and Management) Regulations 1994 and the existing law of corporate manslaughter have done little to reduce these figures. However, proposals are now well advanced to create a new offence of corporate killing, which will make it easier to convict both organisations and their managers of manslaughter.
The proposals for the new offence of corporate killing are set out in a consultation paper entitled "Reforming the Law of Involuntary Manslaughter", published by the Home Office in May 2000. The new legislation may well be in place by 2003.
Under the new legislation a company can be prosecuted for corporate killing and furthermore, individual officers in that company can also be prosecuted in their personal capacity. Potential sanctions are between five years imprisonment and life imprisonment and/or an unlimited fine. In addition, any individual having influence or responsibility for the relevant circumstances could be disqualified from acting in a management role in any business in the UK.
In order to convict a company of corporate killing, proof will be required that:
- a management failure by the undertaking was one of the causes of a person’s death; and
- that failure constituted conduct falling far below what could reasonably be expected of the company in the circumstances.
The risk of causing injury or death does not need to be obvious nor does the defendant need to be capable of appreciating the risk. The corporation may be liable even if the immediate cause of the person’s death is the act or omission of an individual.
A management failure will mean a failure in the way that a company manages or organises its activities to ensure the wellbeing of anyone who may be affected. It will therefore be important for companies to put in place systems which can be seen to manage all working practices so as to ensure that they are carried out safely. It is quite likely that companies will ensure that they appoint a senior director on the board to have responsibility for health and safety and ensure that they taken on enough staff and have adequate resources to manage health and safety issues.
It should be noted that the Health and Safety Executive (as well as the police) may be given a mandate to investigate and prosecute potential offenders which may well be most effective in securing convictions.
Some of the details of the new law still need to be finalised and perhaps the most important issue is how to define the standard of conduct below which one must not fall.
Hopefully, the new legislation will make the construction industry safer: I have no doubt that the increased sanctions and offences will focus both corporation’s and individual’s minds upon the importance of health and safety as the primary issue in any construction project.
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.
