Managers’ News
In
April 2008 the main provisions of The Corporate Manslaughter and
Corporate Homicide Act 2007 come into force.
I have been asked what the implications for client companies may be.
The short answer is – generally none!
Let
me explain. It has been a common
misconception that a legal entity such as a limited company cannot be prosecuted
for manslaughter. True to an extent
– but where a real person (let’s say the managing director) can be
identified as being responsible this person can be and is prosecuted.
Until
now, corporate manslaughter was an aspect of the common law offence of Gross
Negligence Manslaughter. Legal tests associated with that offence mean that,
before an organisation could be charged with corporate manslaughter, it was
necessary to prove that “a directing mind’ of the organisation (that is, a
senior individual who can be said to embody the company in his actions and decisions)" is
also guilty of the offence. This is known as the identification
principle. For the majority of
companies – small and medium enterprises – such as yourselves this person is
easily identified.
The
problem was with major companies such as those involved in the disasters such as
the capsizing of the Herald of Free Enterprise off Zeebrugge in 1987 (197 dead),
the Piper Alpha disaster in 1988 (166 dead), the Ladbrook Grove (31 dead) and
Hatfield rail crashes (4 dead), and there are numerous other examples.
Understandably relatives of victims not only wanted the companies prosecuted for
corporate manslaughter, they wanted to see company directors imprisoned for the
offences. Some attempts were made at
prosecutions under the existing legislation but all failed due to no senior
person being identified as being responsible.
Hence
the new Act. This in effect forces
companies to take responsibility at a personal level or top management CAN be
charged with manslaughter and face imprisonment
It
has taken ten years to come into force, mainly due to problems with Crown
immunity and issues such as deaths in custody.
Another case of a rule for us and a rule for them perhaps (politicians,
civil servants etc). Indeed,
responsibility for deaths in custody is not yet enacted within the legislation.
So
what is the result of the new legislation? The offence is defined in section 1
of the new legislation as follows:
“An organisation” ... “is guilty of an offence [of corporate
manslaughter] if the way in which its activities are managed or organised:
a) causes a person’s death, and;
b) amounts to a gross breach of a relevant duty of care owed by the organisation
to the deceased”.
The term ‘organisation’ includes bodies incorporated by law or charter,
partnerships, trades unions and employers’ associations, as well as police
forces and crown bodies listed in a schedule to the Act. This opens the vast
majority of organisations to liability.
The Act further declares that:
“An organisation is guilty of an offence... only if the way in which its
activities are managed or organised by its senior management is a substantial
element in the breach referred to”
This clause is designed to ensure that only truly corporate failings are caught
by the legislation. Individuals’ liability to the offence of Gross Negligence
Manslaughter will remain where fatalities result from the acts or omissions of
natural persons, rather than from corporate failings. The identification
principle is not relevant in such cases and consequently current law is considered adequate
for these offences. And that
is why I say it will not affect you
Work
(and manage) safely
Chartered
Safety & Health Practitioner