The Corporate Manslaughter and Corporate Homicide Act comes into force on 6 April 2008. The Act will make it easier for prosecutions to be brought on grounds of mismanagement or organisational failure where a person dies as a result of those shortcomings. Health and safety always has been a major concern to the construction industry, and the sector will be more affected than most by the Act – according to a report by the Centre for Corporate Accountability for Ucatt, the number of deaths on construction sites is likely to rise by 25 per cent this year.
The new Act provides that an organisation will be guilty of an offence if the way in which its activities are managed or organised:
- cause a person’s death; and
- ·amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
The legislation refers to corporate manslaughter being committed by “senior managers”. In fact an organisation can only be guilty of the offence if the way in which the organisation’s activities are managed or organised by its senior management is a “substantial element” in the company’s gross negligence.
The changes under the new Act now make it possible for prosecutions to be brought for corporate manslaughter against an organisation due to the collective failure of senior managers. Previously, for an organisation to be guilty, it was necessary to identify a single individual who could be said to be the “directing mind” of the organisation who was himself guilty of gross negligence manslaughter.
While this was possible to prove in smaller organisations, in more substantial bodies day to day management of operations is devolved through chains of command, making identification of a single “directing mind” who caused the death through gross negligence very difficult.
Large organisations which were found [either at public enquiry or during inquests] to have systemic health and safety failings avoided prosecution for corporate manslaughter, because of the inability to identify a single individual who could be held liable.
Between 1992 and 1998, there were 59 referrals of potential corporate manslaughter prosecutions to the Crown Prosecution Service (CPS). The CPS chose to prosecute in only 18 of those cases, and convictions were achieved in only four. To the families of those killed as a result of health and safety breaches, many feel as if companies have been able to get off the hook too easily. By replacing the “directing mind” principle with a concept of management failings at senior level, all organisations of whatever size with systemic failings are now at risk.
The Act does not create a new liability for individual directors. The theory behind this is that convictions are more likely where the organisation and the organisation alone are responsible. The possibility of individual directors/managers being convicted at common law for gross negligence manslaughter still remains.
Organisations should also be aware that if the breach of duty is a breach of Health & Safety legislation there is the probability that a charge of corporate manslaughter will be accompanied by further charges in respect of breaches of other Health & Safety legislation. Also it is worthy of note that directors and managers can still be individually charged under s37 Health & Safety at Work Act 1974.
Courts will be able to impose unlimited fines on organisations found guilty of corporate manslaughter under the new Act. Courts will also be able to impose remedial orders requiring organisations to put right the managerial or organisation failings in their systems and procedures that were responsible for causing the offence, within a specified time. Courts can also exercise the power to “name and shame” by requiring organisations to publicise the offence, the conviction and the penalties imposed within a certain period of time.
Given that the proposed legislation introduces the concept of senior management responsibilities, it is important for “senior management” of any company, however large or small, to be identified and then to review their practices and procedures to ensure that compliance with Health and Safety legislation is maintained and also to ensure that all employees are aware of their responsibility for Health and Safety. Where breaches occur, they should be investigated and dealt with firmly.