The Corporate Manslaughter and Corporate Homicide Act 2007 established a new statutory offence of corporate manslaughter (corporate culpable homicide in Scotland).
An organisation is guilty of the offence if the way in which it manages or organises its activities causes a death and amounts to a gross breach of a relevant duty of care to the deceased. A substantial part of the breach must have been in the way activities were managed by the senior management of the organisation.
The new offence builds on the responsibilities that employers and organisations already owe to their employees and members of the general public, with regard to the premises they occupy and the activities they carry out.
Previously, an organisation could only be convicted of manslaughter if a ‘directing mind’ – i.e. a senior manager or director – was also personally liable. However, this did not reflect the reality of the way decisions are made in large organisations and there were very few prosecutions as a result. The new offence is concerned with the corporate liability of the organisation itself, allowing this to be assessed on a wider basis and providing greater accountability for serious management failings across the organisation. It will continue to be possible to bring prosecutions for gross negligence manslaughter against individuals, where there is sufficient evidence and it is in the public interest to do so.
When determining whether an organisation is guilty of the new offence of corporate manslaughter, the courts will look at management systems and practices across the organisation and whether an adequate standard of care was applied to the fatal activity. Juries will be required to consider the extent to which an organisation was in breach of its health and safety requirements and how serious those failings were. They will be able to consider the culture that exists within an organisation regarding health and safety issues. Lax management attitudes that result in a lower standard of care than could reasonably be expected will be punished.
An organisation convicted of the new offence may receive:
- an unlimited fine;
- a publicity order requiring an organisation to publicise its conviction and certain details of the offence; and
- a remedial order requiring the organisation to address the cause of the fatal injury.
The sentencing guidelines state that ‘fines for companies and organisations found guilty of corporate manslaughter may be millions of pounds and should seldom be below £500,000. For other health and safety offences that cause death, fines from £100,000 up to hundreds of thousands of pounds should be imposed. In deciding the level of fine, account must be taken of the financial circumstances of the offending organisation.’
As is usual with new legislation, cases brought under the Act took a while to reach court, with the first prosecutions involving small companies. However, recent cases, although few in number, show that that the courts take very seriously breaches of health and safety laws that lead to someone being killed.
A consultation paper published in July 2017 by the Sentencing Council for England and Wales ('Manslaughter Guideline Consultation') has proposed that the current law on manslaughter committed by negligent employers should be beefed up, with longer potential terms of imprisonment in cases of 'gross negligence manslaughter'.
The paper recommends an increase in the maximum sentence from eight to 18 years where the duty of care to a person is breached to an extent which amounts to a criminal act or omission and the person dies as a result. The majority of those charged with the offence are likely to be employers, but grossly negligent medical practitioners can also be charged.
Employers are advised to keep their procedures under review, especially those with direct health and safety implications. Successful defences to charges of corporate manslaughter will inevitably depend on being able to prove that the organisation takes a responsible attitude to health and safety, with appropriate risk management procedures in place that are enforced rigorously.