What is the purpose of this legislation?
The Corporate Manslaughter and Corporate Homicide Act came into force on 6 April 2008, its primary purpose being to clarify the criminal liabilities of companies, including large organisations, where serious failures in the management of health and safety result in a fatality.
Previously, the common law offence of corporate manslaughter (culpable homicide in Scotland) required an individual to be capable of being convicted of gross negligence manslaughter (in Scotland, recklessly causing death) and that same individual to be senior enough to be the ‘directing mind’ of the organisation. This was deemed to result in a degree of unfairness, making convictions for small companies run by one or two ‘hands-on’ directors possible, but making it almost impossible to convict larger companies.
In theory, the Act makes it easier to prosecute companies and other large organisations whose gross failures in the management of health and safety lead to deaths, the key obstacle to convicting large companies (the need to convict the directing mind) being removed. The Act covers England, Wales, Northern Ireland and Scotland (where the offence is called corporate homicide), as well as UK territorial waters, UK registered ships, British controlled aircraft and hovercraft and offshore oil platforms.
Who is responsible for compliance and what needs to be done?
The offence is directed at organisations, which are defined as companies, partnerships, trade unions, employers' associations, police forces and those government departments and public bodies listed in the Act.
An organisation will be guilty of corporate manslaughter if the way in which its activities are managed or organised:
- causes a person's death; and
- amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
‘Gross breach’ is defined as conduct falling far below what can reasonably be expected of the organisation in the circumstances. Whether or not there has been a gross breach is ultimately a decision for a jury, who will consider:
- compliance with health and safety legislation/guidance; and
- whether the organisation's attitudes, policies, systems or accepted practices (i.e. its safety culture) were likely to have encouraged or produced tolerance of non-compliance with health and safety requirements.
The breach must be linked substantially to the way in which the organisation is managed or organised by its senior management (responsible for decision making or actually managing the whole or part of the organisation).
Whether there is a ‘relevant duty of care’ is a question of law for the judge to determine under the law of negligence (and statutory obligations). It includes:
- the duty of care owed by an employer to its employees;
- a duty owed as an occupier of premises;
- a duty owed in connection with
- the supply by the organisation of goods or services;
- the carrying on by the organisation of any construction or maintenance operations;
- the carrying on by the organisation of any other activity on a commercial basis; or
- the use or keeping by the organisation of any plant, vehicle or other thing.
The main penalty on conviction is an unlimited fine. The courts can also require a convicted organisation to take specified steps to remedy the management failure that led to the fatality (a ‘remedial order’). Such orders will be rare, given that most cases are likely to take several years to come to court. A court may also order the organisation to publicise its conviction, setting out the specified particulars of the offence, the fine imposed and the terms of any remedial order.
While an individual can’t be prosecuted under the Act and no one can be sent to prison, it’s important to remember that the common law offence of individual gross negligence manslaughter still exists, allowing convicted individuals to be sentenced to up to life imprisonment. The Act also envisages concurrent health and safety proceedings, allowing the organisation, as well as its employees, managers and directors, to be prosecuted for health and safety offences arising from the same incident.
Any corporate manslaughter prosecution will be based on alleged failings in an organisation's management systems and implementation, so it is important to:
- review how health and safety is managed;
- regularly audit health and safety systems, operational practices, risk assessments, etc.;
- benchmark systems against industry standards;
- comply with Health and Safety Executive (HSE) guidance (and/or document reasoning the reasons for choosing alternative way of working);
- review the systems in place and do everything possible to raise the profile of health and safety internally; and
- consider periodic external audit of the systems by a specialist consultant or advisor.
In addition to the above, and recognising the importance of strong and active leadership from the top, organisations and individual members of the senior management team need to:
- Set the direction for effective health and safety management.
- Take the lead in ensuring the communication of health and safety duties and benefits throughout the organisation.
- Develop policies to avoid health and safety problems and respond quickly where issues arise or new risks are introduced.
- Protect people by introducing management systems and practices that ensure risks are dealt with sensibly, responsibly and proportionately.
- Establish ownership and responsibility. This is key to ensuring that
- health and safety arrangements are adequately resourced;
- competent health and safety advice is provided;
- risk assessments are carried out; and
- employees or their representatives are involved in decisions that affect their health and safety.
- Ensure that systems for monitoring and reporting are in place and recognise that they are vital parts of a health and safety culture.
- Make sure management systems allow senior management to receive both specific and routine reports on the performance of health and safety policy. Senior management should ensure that:
- appropriate weight is given to reporting on preventive measures and information (progress of training and maintenance programmes for example) and incident and accident data, including sickness absence rates;
- periodic audits of management structures and risk controls for health and safety are carried out to confirm that they continue to be effective and appropriate;
- the impact of changes such as the introduction of new procedures, work processes or products, or any major health and safety failure, is reported, with feedback provided to the senior management team;
- there are procedures to implement new and amended legal requirements and to consider other relevant external developments and events.
- Have health and safety performance reviewed by senior management at least once a year. The process should:
- examine whether the health and safety policy reflects the organisation’s current priorities, plans and targets;
- establish if risk management and other health and safety systems have been effectively reporting to the senior management team;
- identify and report health and safety shortcomings, and the effect of all relevant management decisions;
- decide actions to address any weaknesses and a system to monitor their implementation; and
- consider immediate reviews in the light of any major shortcomings or events.
It’s important to remember that when senior management don’t lead effectively on health and safety management the consequences can be severe.