New corporate manslaughter offence - April 2008
Prosecutions are now easier for the offence of Corporate Manslaughter.
The Corporate Manslaughter and Corporate Homicide Act 2007 attempts to create a more effective method for securing prosecutions for health and safety failings. From 6 April 2008 the new offence of “corporate manslaughter” is created.
The existing law deals with the liability of individuals and can hold them to account. The new legislation has to do with corporate responsibility and liability. For the first time, corporations and government bodies will face prosecution if they are found to have caused a person’s death due to failings in their corporate health and safety (liability for deaths that occur in police custody or in prison will come into force at a later date).
Until this point in time the law linked the organisation’s guilt to the gross negligence of an individual (who was considered to be the embodiment of the organisation) and this made it very difficult to prosecute large organisations for their failings. Now, instead of having to show that one individual is guilty of gross negligence manslaughter, the courts will consider the wider picture looking at the actions and failings of a collection of the corporation’s senior managers.
It is expected that, armed with the new statute, prosecutors will focus on the worst cases of management failure resulting in death. With the possibility of conviction and penalties, the incentive is there for organisations to improve the safety of the work environment.
Under the new law organisations will be guilty of corporate manslaughter if the way in which their activities are managed or organized by senior management, amounts to a gross breach of the duty of care it owes to its employees, the public or other individual resulting in death.
Senior managers Senior managers are those who play a significant role in the decision-making process. There is no definition of senior managers, and in each case it will depend on the size and structure of the business involved.
Gross breach of the duty of care The prosecution must prove that the management failure was a gross breach of the duty of care owed to the deceased. The jury should consider whether the evidence shows that the company’s conduct fell far below that which could reasonably have been expected of it.
Factors to be considered include the extent to which the organisation failed to comply with any relevant health and safety legislation, and if so how serious that failure was and how much of a risk of death it posed. The jury will also consider the extent to which the evidence shows there were attitudes, policies, systems or accepted practices within the organisation that were likely to have tolerated the failings.
Penalties:
- an unlimited fine
- remedial orders (requiring the organisation to take steps to remedy their management failure)
- publicity orders (publicizing the fact the company has been convicted of the offence, details of the offence, the amount of any fine and terms of any remedial order).
Please contact us on 020 7420 7020 or enquiry@sethlovis.co.uk for further advice.