Sentencing for the Corporate Manslaughter and Corporate Homicide Act 2007

On 6 April 2008 the Corporate Manslaughter and Corporate Homicide Act 2007 came into force. The act creates a new offence called corporate manslaughter in England, Wales and Northern Ireland (called corporate homicide in Scotland). The act applies to companies, partnerships and a long list of public bodies (including police forces) as crown immunity is largely removed. These are referred to as ‘organisations’ within the act.

THE OFFENCE

Proceedings for corporate manslaughter can only be instituted with the consent of the Director of Public Prosecutions and will be tried in the Crown Court.

An organisation is guilty of the offence of corporate manslaughter if the way in which its activities are managed or organised by its senior management causes a person's death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

A duty is owed by the organisation under the law of negligence:

• As an occupier of premises
• To employees or other persons working for or performing services for the organisation

Also in connection with:

• The supply of goods or services (whether or not for consideration)
• Construction or maintenance operations (as widely defined in the act)
• The use or keeping of any plant, vehicle or other thing
• Any activity carried out on a commercial basis

It is a question of law as to whether or not an organisation owes a duty of care to a particular individual. A judge, not a jury, decides.

It is a question of fact and therefore for the jury to decide whether the organisation's conduct falls far below what can reasonably be expected of it in the circumstances, therefore amounting to a gross breach.

Senior management means all persons who play a significant role in:

• The making of decisions about how all or a substantial part of an organisation's activities are to be managed or organised
• The actual managing or organising of all or a substantial part of those activities

The basis of the new offence of corporate manslaughter/homicide is not without its difficulties for a prosecutor.

The charge must be proven beyond reasonable doubt compared to a charge for a health and safety offence where the liability is strict, subject only in some instances to the defendant having a defence by proving on the balance of probability that it took all reasonably practicable steps to comply with its duties under the Health & Safety at Work (etc) Act 1974.

Where a corporate manslaughter/homicide charge is brought, the prosecutor can, at the same time, prosecute an organisation for a health and safety offence with all charges being tried together.

While only an organisation can be prosecuted for the new offence, directors, board members or other individuals may still be held personally liable under existing health and safety or gross negligence manslaughter laws.

PENALTIES

Consequences of conviction for the new offence are likely to be much greater than a conviction for a health and safety offence arising out of a fatal accident.

The court will impose a fine and no statutory limit has been set, however the draft Sentencing Guidelines suggest that the fine could be between 2.5% and 7.5% of a company's annual turnover.

The court may also make a remedial order, on the application of the prosecutor, requiring the defendant to take specific steps to remedy the breach. However, if the HSE/local authority has already served a prohibition or improvement notice under the 1974 Act, before the case reaches court, such orders may not be required in practice.

Further, a publicity order may be made by the court, requiring the defendant to publicise, in a specified manner:

• The fact that it has been convicted
• Particulars of the offence specified in the order
• The amount of the fine
• The terms of any remedial order

It is difficult to predict the extent to which publicity orders might be made given that these types of cases and their outcome will generally attract considerable media reporting in any event and the fact that the HSE already publishes all convictions for health and safety related offences on its website.

However, where a publicity order is made it could, for example, include requirements to publish prominently on the organisation's website and/or by way of an advertisement in national newspapers (particularly if the defendant often advertises its business in that way). The effect of such measures on brand/reputation could be very serious.

Failure to comply with either a remedial or a publicity order is an offence punishable by fine.

RISK MANAGEMENT

As a matter of urgency, all organisations should now carry out thorough reviews of their health and safety management systems and how they operate. External advice should be sought, where required, and the necessary steps (if any) taken to correct any possible problem areas.

An organisation should ask whether:

• Individuals who deal with health and safety are suitably qualified and experienced
• The board has considered and approved the management and organisation of health and safety
• There are adequate funds provided to maintain proper standards of health and safety
• There are properly documented health and safety systems and procedures in place that are kept under review
• The overall culture within the business is conducive to maintaining proper standards of health and safety