Introduction

Health and safety generally gets a bad press. Journalists like to pick on instances where health and safety interferes disproportionately with everyday life. In reality, of course, in business, health and safety issues are extremely serious, being in certain cases matters of life and death.

In 2006, the Court of Appeal sentenced Michael Shaw to 15 months in prison following conviction for the common law offence of manslaughter by gross negligence. Mr. Shaw was the managing director of a company called Change of Style Ltd. which manufactured kitchen work-surfaces using stone and marble. The case report describes Mr. Shaw as having a ‘hands-on’ approach to business, being heavily involved at the shop-floor level. The company used three heavy duty fully automated stone-cutting machines. The operating manuals stated that no operator should remain near the machine whilst it was working. Each machine had an electronic safety device whereby the machine would stop working immediately if any person broke a light beam emitted by the machine across a danger zone. This was inconvenient, however, as switchingoff the machine mid-cycle caused the computer-based cutting programme to have to be restarted from the beginning. Sadly, the safety devices were deliberately deactivated for the sake of convenience. On May 13, 2004, a 22-year-old employee, David Bail, was fatally injured by one of the stone-cutting machines as a result of the safety device being rendered inoperative.

Common Law Offence

This case is an example of the common law offence of manslaughter which has been applied through the criminal courts for many years.

Under the common law, a conviction can only arise where it is proved beyond reasonable doubt that the victim’s death was caused as a result of the offender’s gross negligence or recklessness as to the risk of injury. In this context, “gross negligence” means where (i) a reasonably prudent person would have foreseen a serious and obvious risk of death or injury and (ii) in respect of that risk, the offender’s conduct in all the circumstances has fallen so far below the standard to be expected of a reasonable person that the act should be treated as a criminal act (as opposed to a lesser unlawful act where an award of damages against the offender is considered an adequate remedy).

The common law offence, however, can be very difficult to prove, especially in relation to larger more complex operations where a chain of decisions or actions (and more than one person) is likely to have caused the resulting accident.

In relation to companies, under common law, they can only be convicted of corporate manslaughter where the individual(s) (guilty of manslaughter) is also the “controlling mind” of the company. This may be easy to prove for small companies (where there is really one person directing all affairs) but in large companies it is almost impossible to prove that one individual controlled the company. Large companies by their nature operate through the decisions and conduct of numerous people. Company directors can only be convicted of manslaughter where it is shown that he/she was personally guilty of gross negligence – which arguably gives directors an incentive to avoid any involvement in safety and operational matters where possible.

As a result, despite the hundreds of deaths in the workplace each year, very few convictions for corporate manslaughter have arisen.

Finally, under the common law, Crown bodies (those organisations that are legally a part of the Crown, such as Government departments) cannot be prosecuted for criminal offences under the doctrine of Crown immunity. In any case, many Crown bodies, such as Government departments, do not have a separate legal identity for the purposes of a prosecution.

The Need for Reform

Public concern about the lack of accountability of companies and their directors for major accidents came to a head in the late 1990s (just as Labour came to power) following the failed prosecution of GWT for the Southall rail crash.

On September 19, 1997, a high-speed Great Western Train Company train travelling from Swansea to London, travelling at 125 mph, passed a red signal and collided with a freight train. Seven people were killed and 151 injured. The passenger train was operated by GWT, a company with an annual turnover of £300 million at the time. The train was being operated with its automatic warning system switched-off (because it didn’t work) and the automatic train protection system was also inoperative. There was no second driver in the cab. The accident did not result from individual mistakes but rather a failure of safety management. The prosecution of GWT for common law corporate manslaughter failed due to difficulties in finding one senior person in the company who could be held to be personally responsible on the grounds of gross negligence. The same problem arose in the earlier prosecution of P&O Ferries after the Herald of Free Enterprise capsized, killing 192 people.

The New Act

The Corporate Manslaughter and Homicide Act 2007 is aimed solely at corporations – not individuals. In fact the common law of manslaughter in relation to individuals remains unchanged. This means company directors are not personally effected by the new Act – their conduct remains subject to the common law.

The new Act creates a specific new offence applicable to corporations of corporate manslaughter. The Act provides that corporations can no longer be guilty of common law manslaughter and, as a consequence, the problems of gaining a conviction against a company by having to prove the person guilty of gross negligence was also the “controlling mind” of the company (referred to above) no longer applies.

Subsection 1(1) of the new Act states: “ An organisation to which this section applies is guilty of an offence 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 offence can only arise however where the way in which the organisation’s activities are “managed or organised by its senior management” is a substantial element in the breach referred to in subsection 1. The phrase senior management includes those persons who play a significant roles in making decisions about how activities are managed or organised. This is a significant aspect to the new offence because it requires linkage between the accident/breach and senior management. Although it is not the same as the “controlling mind” concept under common law, the “senior management requirement” requires an element of management failure by person(s) at the apex of the organisation.

The term ‘organisation’ includes a corporation, a police force, a partnership or a trade union/employer’s association and various government departments all listed in the new Act. This is a major extension of the law as previously (as mentioned above) Crown bodies could not be convicted of the common law offence of manslaughter. It is possible therefore under the new Act for a police force or the Department for Transport or MoD being convicted with corporate manslaughter although there are however some wide exemptions for the public sector (see further below).

For an offence to arise there must be a “gross breach” of the “relevant duty of care.” Taking these elements in turn:

1. A breach is “gross” where the conduct “falls far below what can reasonably be expected of the organisation in the circumstances.” Each case will be assessed on its own merits but the new Act lists some factors which the jury may consider when deciding whether the conduct leading to the death amounted to a gross breach, including “attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure...or to have produced tolerance of it.” The jury may also have regard to any relevant health and safety guidance.

2. The “relevant duty of care” is described in Section 2 and is complicated mainly because the new Act seeks to exclude a wide range of public sector activities from the Act. The duty mirrors the current duty of care as applied in actions for negligence and includes the duties of employers to their employees, the occupier of premises to visitors; suppliers of goods or services to customers, construction or maintenance operations and any other activity on a commercial basis.

Controversially the new Act also specifically applies to persons being transported between or detained at custodial institutions, custody areas, courts and police stations. It also applies to persons who are detained patients.

Public Sector Immunity

Certain public sector bodies or functions are given wide immunity. This includes “decisions as to matters of public policy.” Other duties of care which are not to be considered a “relevant” duty of care (unless they fall specifically within some of the subsections of Section 2) include a duty of care owed in respect of things done in the exercising of a public function and a duty of care owed by a public authority in respect of inspections carried out in the exercise of a statutory function.

In relation to the Ministry of Defence, peacekeeping operations or operations dealing with terrorism, civil unrest or serious public disorder are not relevant duties of care under the new Act. Furthermore, any duties owed by MoD in respect of activities carried out by special forces are not a relevant duty of care. Ordinary training undertaken by the MoD is covered by the new Act as is MoD’s duty as an employer and occupier of premises (like any other employer).

Other excluded operations include:

  • Organisations dealing with terrorism, civil unrest or serious disorder
  • Organisations responding to an emergency (such as a fire and rescue authority, a relevant NHS body, an organisation providing ambulance services, an organisation providing a rescue service, the armed forces).

This area of the Act is however complicated and likely to remain open to doubt until further interpreted through case-law. Corporate Manslaughter and Homicide Act 2007

Penalties

Conviction of the new offence is punishable by an unlimited fine.

The Courts can also impose “remedial orders” or “publicity orders” against the offending organisation. Remedial orders can require the organisation to remedy the breach and may include requirements to take steps to deal with any deficiencies in health and safety procedures, systems or practices. Publicity orders can require the organisation to publicise the fact that it has been convicted of the offence including the amount of any fine imposed and the terms of any remedial order made. Failure to comply with any such orders is punishable by a fine.

Conclusion

The new Act is probably not quite what the unions, the media, or the public sector expected. The Act does nothing directly to enhance the rights or victims – nor does it increase the personal liability of directors. It could be argued that convicting organisations for manslaughter is relatively meaningless – they can’t be sent to prison – and fines in themselves offer only a limited deterrent.

In its defence, the Government will point out that the new Act will allow business undertakings to be more easily convicted of manslaughter and that organisations will be more accountable for deaths caused by seriously poor management. Assuming some convictions follow, the combination of fines, publicity and remedial orders should, in practice, effect corporate culture and compel senior management to ensure that their organisation’s activities are organised and managed properly.

Critics will say that nothing has really changed. There will still be failed prosecutions and given that directors (and civil servants) are not effected personally by the new Act, they have no real incentive to change their approach. Fines could be imposed already under the Health and Safety at Work Act 1974 – but the risk of being fined did not deter the major sea and rail accidents that occurred in the 1990s. If there was another major accident, it will still be difficult to prove beyond reasonable doubt that senior management’s acts or omissions, in managing the organisation, have caused the accident. Even if the prosecution is successful, the public will not be particularly impressed with fines being imposed – especially when fines could mean that less money is spend on safety systems and training. In practice it is questionable whether remedial or publicity orders will ever be used.

For extreme cases there should arguably be sterner sanctions available to the Courts. These could include the right to disqualify or fine responsible individuals personally. Also the Courts could have been given the right to sequester assets or require total replacement of management. Such measures, although draconian, for extreme cases (especially in relation to public transport) could be used to force change and cause directors to proceed with much greater caution.

The new Act gained Royal Assent on 26 July 2007. The Government has indicated that the Act will come into force in April 2008 save that the sections dealing with deaths that occur in police custody or prison will be brought into force at a later date. Guidance notes on the Act have just been published and can be found on www.opsi.gov.uk.