The Corporate Manslaughter and Corporate Homicide Bill received Royal Assent on 26 July 2007. The Act will come into force on 6 April 2008.
The Bill has taken a considerable period to progress through Parliament due to the protracted debate between the Lords and the Commons as to whether the offence should apply to deaths in custody. In the end, the Lords prevailed and the offence has been extended to apply to organisations responsible for those held in custody, including temporary custody, prisoners in transit, children in secure accommodation and patients detained under mental health legislation. However, liability for deaths in custody will not come into force on 6 April 2008 but will be introduced at a date to be determined.
The Act will create a new statutory offence of corporate manslaughter and replace the common law offence of manslaughter by gross negligence in its application to the organisations specified in the Act. The new offence is a corporate offence applying to companies, partnerships and other organisations including government departments and the police force. It will not apply to directors or individuals, who may nevertheless have a separate liability under health and safety legislation. The new offence will not apply to deaths occurring before the Act comes into force but there will be some interesting considerations in relation to management practices before that date and for a transitional period thereafter.
The new offence retains many of the elements of the common law offence. The prosecution will have to show that the organisation:
- owed a relevant duty of care to the victim
- breached that duty in a way which can be characterised as a gross breach
- caused a person's death by that breach
The key difference from the common law offence is in how the nature of the breach is assessed.
Previously it was necessary to identify individual directors who were grossly negligent and acted as the controlling mind of the organisation. As a consequence there had been no convictions of any large or even medium-sized corporations. The new offence does away with this requirement and focuses instead on the way in which the organisation's activities are managed or organised by senior management collectively.
To be a gross breach, the conduct of the organisation must fall far below the standards that can reasonably be expected of the organisation in the circumstances. In assessing this, reference will be made to whether there was a breach of health and safety legislation and health and safety guidance as well as "the attitudes, policies, systems or accepted practices within the organisation".
This last point of reference emphasises the importance of senior management establishing health and safety policies and procedures within the organisation appropriate to its area of business, and continuing to focus on delivering these once established.
The Act is introduced at a time when workplace fatalities have increased by over ten per cent in the last twelve months to the end of April.
Louise Moore of Herbert Smith commenting on the Act says
"This is a significant legislative change in terms of corporate accountability and management scrutiny by the courts. Companies will need to have, and importantly will need to be able to demonstrate, effective safety management and executive action but those that can have nothing to fear from the reform."
For further detail please see our earlier note on corporate manslaughter reform.