The Corporate Manslaughter and Corporate Homicide Act 2007: The Common Law and the Next Stage for Health and Safety Legislation
The long promised Corporate Manslaughter Act finally became law in July 2007 after a protracted passage through Parliament.
Difficulty in securing convictions against large companies after deaths at work fuelled calls for the new law. Existing health and safety law required the identification of one individual as a “controlling mind” who played the key part in a decision or failure which led to a person’s death.
New legislation was therefore needed in order to be able to hold employers to account for deaths at work due to gross negligence.
It became clear early during the Parliamentary progress of the Act that there were many different views as to what the legislation could and should achieve. In part the differing views reflected political lines, with the Conservatives opposed to anything that would upset the business community and intent on watering it down where possible, those intent on extending it to cover deaths in custody (an important issue but not one this law was originally intended to cover) and the Labour MPs who simply wanted to ensure it had real teeth.
The Act as it now stands is undoubtedly a compromise and does not deal with the important issue of directors legal duties and accountability for company safety. Promises were made during the course of the legislation to review this aspect of health and safety legislation. The Act can therefore be seen as bringing the law to the half way stage. There is still more to do.
The Act creates a new offence of “Corporate Manslaughter”. It is an offence which can only be brought against a company as a Defendant in its own right.
It is not an offence which can be brought against an individual. For now, because that is where the battle is to be engaged next, individual liability exists only for the common law offence of gross negligence manslaughter.
The Act is primarily concerned with gross breaches of duty and the decision and activities of senior management:
An organisation is guilty of the offence if the way its activities are managed or organised by its senior management amount to a gross breach of a relevant duty of care and causes a persons death.
The duty of care set out in the Act is extensive.
It covers the duties of an employer to his employees and any of the duties applicable under the law of negligence.
It specifically includes:
- the duties of an occupier of premises
- duties in connection with the supply of goods and services
- the carrying out of construction and maintenance operations, plant and vehicle maintenance and in effect any other commercial activity.
The Act also covers deaths in custody or detention including during transportation in a vehicle.
The Act applies to deaths in England Wales and Scotland but not the deaths of workers employed by UK companies abroad.
In the past it has not been possible to prosecute Crown bodies because they enjoy Crown immunity. For most purposes the Act has abolished this immunity and the Crown can now be charged with Corporate Manslaughter.
There are some important exceptions which relate to the Military, Policing, emergency services and child protection and probation functions. By and large they are excluded except in respect of employer / employee duties and duties as an occupier of premises. Public and Government functions relating to questions of public policy are also excluded.
An unlimited fine: Until guidance is available it is not clear how financial penalties under this Act will differ from penalties under the Health and Safety at Work Act 1974.
Publicity Orders: This is a naming and shaming provision. Whilst no court has yet used the powers they will have unlimited power to order a company to publicise the fact of conviction and the circumstances which led to the conviction. This could consist of public advertisements in newspapers, on radio and on TV. This power will come into effect in Autumn 2008 when guidelines will be available.
Corporate Probation: This appears under the heading remedial orders but is in fact a form of corporate probation and is probably the most innovative and progressive part of the Act.
A company convicted under the Act may be required by order of court to take specified steps to remedy any matter that appears to have resulted from the breach and to have been a cause of death and to take steps in relation to any deficiencies in health and safety matters. Those deficiencies may be in the organisations’ policies, systems and practices.
This power represents a new proactive approach to safety and involves looking at the cause of an accident including a company’s system of management, culture, approach to safety, training and systems of operation. This may extend to looking at the system of senior management of a company including the role of company directors.
The Existing Law
The offence of gross negligence manslaughter remains. It is not abolished. It may be possible for charges to be brought against an organisation under this Act and for charges to be brought against an individual director or other manager for manslaughter.
Charges can also be brought against individuals including directors under the Health and Safety at Work Act 1974.
The Next Stage of Health and Safety Law?
The Act is a good start. But the Government will have to be held to promises made during the parliamentary debate to look at the issue of directors’ duties and to consider amending existing legislation or introduce new legislation.
The gap whereby directors of companies can be imprisoned for corporate fraud offences but not for health and safety offences which lead to the death of a worker has to be filled by a Labour government as it certainly won’t be by a Conservative one.