Road Legal

Health and safety offences can be committed by individuals as well as companies.  When there has been a death, manslaughter prosecutions can also be brought against individuals and, to a lesser extent, against corporations.  New legislation is proposed which will make it easier to prosecute companies for manslaughter.

Personal  responsibilities under HSWA 1974

Section 7 of the Health and Safety at Work Act 1974 (HSWA 1974) imposes a duty on every employee to take reasonable care for the health and safety of himself and any other person who may be affected by his acts or omissions at work, and to co-operate with his employers so far as is necessary to enable the employer to comply with any duty on him. It generally affects lower level employees and usually accompanies charges against a company and/or a director or senior manager.  On the whole, this relates to occasions where safety is disregarded by individuals rather than inadvertence.  Prosecution of individuals under this section is relatively uncommon but can result in personal fines.

Under  section 37, where an offence is committed by a company, senior persons within the hierarchy of the company may also be individually liable.  So if an offence is committed by the company, with the consent, connivance or neglect of a director, manager, secretary or similar or anyone purporting to act in that capacity, the individual as well as the company is liable.

HSE enforcement policy against individuals

The Health & Safety Executive (HSE) only identifies and prosecutes individuals if it is appropriate. It will consider the management chain and the role of the individual directors and managers.  Prosecution of individuals will only really be considered in serious cases.

Personal gross negligence manslaughter

Manslaughter is investigated by the police and prosecuted by the Crown Prosecution Service (CPS).

If an individual unintentionally causes the death of another through their gross negligence, they may be guilty of gross negligence manslaughter. The following ingredients are required to prove gross negligence manslaughter:

• there must be a duty of care owed by the individual to the deceased
• the individual must breach that duty of care (i.e. the individual acts in a way a reasonable person would not act)
• the breach must cause the death
• the breach must amount to gross negligence - which is more than mere neglect, mere inadvertence or  mistake.  The breach has to be so gross that in all the circumstances it should be considered a criminal act

Individuals owe a duty of care towards almost everyone that they come across.  It is basically a duty not to injure anyone that we could reasonably foresee could be injured.

Some examples of what might amount to gross negligence are:

• ignoring relevant advice from the HSE/employee/third party that a practice is unsafe
• already being aware of the danger that caused the death
• not learning from previous injuries or near misses arising out of similar circumstances

Remember if an individual is guilty, the company may also be guilty!

Current corporate manslaughter law

It is currently very difficult to successfully prosecute companies for gross negligence manslaughter.  For a successful prosecution, there needs to be an individual within the company who is properly considered to be the "controlling mind" of the company and who is also personally guilty of gross negligence manslaughter as described above.

The controlling mind of the company is usually a director involved in the day-to-day operations though it can include managers in certain circumstances.  Directors in large companies are generally too far removed from events which caused the death and  therefore cannot be considered the "controlling mind" of the company.

Consequences of conviction for gross negligence manslaughter

Companies and individuals will be left with a criminal conviction.  Companies face an unlimited fine and individuals found guilty of manslaughter face prison.  There is also the potential for disqualification of directors.

Proposed corporate manslaughter offence

The Corporate Manslaughter and Corporate Homicide Bill 2006 is due to come into force in 2007 and will apply in England, Wales, Scotland and Northern Ireland. 

Under this new legislation there will be no liability for individuals.  However, liability for individuals under the common law for gross negligence manslaughter, as described above, will remain.

Under the new legislation, an organisation will be guilty of an offence 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

An offence will only be committed if the way in which its activities are managed or organised by its senior management is a substantial element in the breach.

Senior management is defined as persons who play a significant role in the making of decisions in the way the whole, or a substantial part, of an organisation's activities will be managed or organised, or the actual managing or organising of those activities.

The conduct of management has to fall far below the expected standard.  This will be assessed by the jury at trial and will involve consideration of health and safety legislation and guidance.

This new offence will deal with management failures that can be associated with an organisation as a whole, rather than individual gross negligence by directors or senior managers. The legislation is intended to make it easier to prosecute and convict companies for corporate manslaughter by obviating the need to find a "controlling mind" of the company, who is also personally guilty of gross negligence manslaughter.

Consequences of conviction under new corporate manslaughter provisions

Conviction under the new legislation will result in a corporate criminal conviction with an unlimited fine.  These fines are speculated to be higher than for HSWA 1974 offences.  The new legislation also empowers judges to make remedial orders.

Further information

For further information in relation to the Corporate Manslaughter and Corporate Homicide Bill 2006   please go to:

http://www.publications.parliament.uk/pa/cm200506/cmbills/236/2006236.pdf

For further guidance on management responsibilities generally please go to:

http://www.hse.gov.uk/pubns/indg343.pdf

This is intended to cover the law and developments being made at the time of writing (30 November 2006).  Any further developments in the law will need to be considered in due course.

By Poppy Williams, a solicitor for DLA Piper UK LLP