For over a decade, successive governments have faced continued criticism that the existing health and safety legislation, and the common law offence of corporate manslaughter, is wholly inadequate to deal with the most serious of tragedies, including those occurring in the workplace. Under the existing common law provisions, to punish an organisation appropriately, the Prosecution has to prove, beyond reasonable doubt, gross negligence manslaughter by an individual who is part of the 'directing
mind' of the organisation which caused or contributed to the death.
This has proved to be an almost insurmountable task, particularly in relation to large organisations where in reality, there is no one individual who could properly be considered part of the 'directing mind' of the organisation and who is also individually guilty of gross negligence manslaughter.
The new offence of Corporate Manslaughter (or Corporate Homicide in Scotland), however, will be committed if, the way in which a business' senior managers organise or manage the activities causes a person's death and this amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. The shift of focus - from the 'directing mind' to senior managers - in the new offence is considered to make it easier to obtain successful convictions.
The new Corporate Manslaughter and Corporate Homicide Act 2007 will come into force on
The new law will affect almost all businesses including partnerships and trade unions or employers' associations, that are employers. It aims to make the corporate identity accountable for manslaughter but does not change the accountability for individual directors or senior managers. Consequently, only the organisation itself can commit an offence under the new legislation. But be warned - this does not mean that individuals are exempt from prosecution for manslaughter.
There are no new obligations imposed upon businesses under the Act. Under the new law a duty of care will be owed by an organisation to the deceased under the same circumstances as is already owed under the law of negligence. The Act is most importantly intended to allow prosecutions for the offence of corporate manslaughter to be brought more easily than under the existing common law.
Some might say that if your business is already operating within the law under the current health and safety legislation then it should not cost you anything. However, how many businesses can honestly state, and be absolutely sure, that their safety management systems and the implementation of them from board level down to the shop floor, are completely compliant with current legislation?
A realistic and much wiser approach would be for organisations to prepare themselves for the new law by undertaking a complete and thorough review of their safety management systems and of how they are practically implemented. This will necessarily incur costs but these costs are likely to be a fraction of any potential penalty if found guilty of corporate manslaughter.
A review of a business' health and safety management systems against current industry standards and guidance will identify whether there is more to be done. It would be wise to consider where your business' particular risk areas are to ensure that sufficient attention is paid to eliminating or minimising those risks properly and effectively. Very often businesses do not have the expertise or resource in house to conduct their own review. Here it would make sense to hire appropriately qualified consultants experienced in their area of business to carry out the review, deliver their findings and advise on implementation of their recommendations.
There is no exemption for a small business whatsoever. If your business is incorporated or a partnership, or a trade union or employers' association - an employer - you will be caught by the Act. If your business does not come within any of the above remember that individual liability for gross negligence manslaughter under the common law will still attach to those within the business.
In fact, as is the position under the existing common law in relation to corporate manslaughter (which will not apply to organisations when the Act comes into force) smaller businesses may be at a higher risk of prosecution because there is a shorter chain of command, senior managers are more readily identifiable and those senior managers tend to have a wider remits and therefore more control over area of the business.
Doing nothing is simply not an option. Remember, whilst the new Act does not provide for individuals to be prosecuted, the existing common law provisions relating to individual manslaughter will remain in force. Where the prosecuting authority believe that there are individuals at fault, they are likely to be prosecuted with the corporate defendant. Individuals can be imprisoned if they are found guilty of individual manslaughter.
Of course, companies cannot be sent to prison so the penalty usually imposed is a financial one. However, sentencing in health and safety cases has always been a problem which courts have struggled with. Under the Act, as in serious health and safety cases, the level of fine is unlimited. As a result, the Sentencing Guidelines Council who are responsible for providing the Courts with sentencing guidance have suggested that on conviction for an offence of Corporate Manslaughter, the court, as a starting point should impose a fine which is equal to 5% of the organisation's annual turnover (with the ability to go up to 10% or more if there are aggravating factors). This would, for most companies, represent a very large fine indeed.
In addition to a fine, courts can compel the organisation to 'advertise' their conviction in the local or national press on the basis that a 'name and shame' culture may send a message to other businesses. It is easy to under estimate the potential damage to reputation which will inevitably result from one or more fatalities and the related health and safety offences, let alone from the stigma attached to convictions for corporate manslaughter. Further, where a court is also of the opinion that the organisation still has not remedied their deficiencies (although it is likely the Health and Safety Executive would have dealt with any perceived deficiencies much earlier) the court can issue a remediation order forcing the company to remedy the breach, any matter resulting from the breach and relating to the cause of death or any deficiency of which the breach is an indication.
There is a considerable amount of information and guidance in the public domain which will assist all businesses to familiarise themselves with the issues that the new law raises. These websites should help.
Stuart Ponting and Poppy Williams are solicitors in the Litigation and Regulatory Group of international law firm DLA Piper LLP.
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