On 13 July 2016 a Bill was introduced to the Houses of the Oireachtas to, "create the indictable offence of corporate manslaughter by an undertaking1, to create the indictable offence of grossly negligent management causing death by a high managerial agent of the undertaking, and to provide for related matters." 2
In its 2005 Report on Corporate Killing3, the Irish Law Reform Commission advised that "the existing law does not deal adequately with organisations which act in a grossly negligent manner and cause death." It is intended that the 2016 Bill will remedy this.
Whilst similar legislation has existed in the United Kingdom since 20084, the enactment of the 2016 Bill would mark a first of its kind in Ireland. Previous legislative attempts5 to address the culpability and accountability of corporate undertakings and/or their officials in relation to their negligent action or inaction resulting in wrongful death(s) have fallen short of achieving Dil approval.
What offences does the Corporate Manslaughter (No. 2) Bill 2016 create?
The Bill legislates for two new criminal offences:
1. Corporate manslaughter6
"Where an undertaking causes the death of a human person by gross negligence"
To be liable in corporate manslaughter an undertaking must have owed and breached a duty of care to a deceased person - with the breach involving a significant risk of death or serious personal harm - whilst the standard of care to which an undertaking is held is one which requires it to take all reasonable measures to anticipate and prevent risks to human life. There must also be a causal relationship between the breach by the undertaking and the death of the person.
In determining whether or not the standard of care has been breached regard must be had to the size of the undertaking, the circumstances at issue and the status of the undertaking - namely whether it was: the employer of the deceased; an occupier of land; producer of goods and/or; provider of services.
The Court is also required to take into consideration factors such as: policies of the undertaking; training and supervision provided by the undertaking and; management practices of the undertaking.
2. Grossly negligent management causing death7
"Where an undertaking has been convicted of corporate manslaughter and a high managerial agent of the convicted undertaking knew or ought to have known of a substantial risk of death or serious personal harm, and failed to take efforts to eliminate that risk...and that failure contributed to the commission of the corporate offence."
The Bill defines a "high managerial agent" as a "director, manager, other similar officer or a person who purports to act in such a capacity." The definition captures anyone who has been delegated managerial duties connected with the undertaking, notwithstanding the fact that they may not be employed by the undertaking.
For a person to be found guilty of grossly negligent management causing death their failure to eliminate the risk of death or serious personal harm must fall far below what could have been reasonably expected in the circumstances, and must also have contributed to the aforementioned offence of corporate manslaughter by the undertaking.
In assessing the culpability of the high managerial agent the Court will have regard to:
i. the responsibilities of the agent
ii. whether or not it was within the agent's power to eliminate the risk
iii. where it was not within the agent's power to eliminate the risk, whether the agent passed on the information to someone within the undertaking who was in a position capable of eliminating the risk
Prosecution and penalties
Charges of corporate manslaughter and grossly negligent management causing death would both be heard on indictment in the Circuit Criminal Court. An undertaking found guilty of corporate manslaughter would be liable to a fine8, and a high managerial agent convicted of causing death by grossly negligent management liable to a fine and/or a prison sentence of up to 12 years.
In addition to any fine imposed, the Court may also have recourse to other sanctions, including:
i. remedial orders
An Order may be made against the undertaking which would require it to remedy the matters which gave rise to the offence.
ii. community service orders
The Court will have the ability to impose a community service order on an undertaking.
iii. adverse publicity orders
An adverse publicity order may be granted requiring a convicted undertaking to publicise details relating to its conviction, including: the facts of the conviction; the amount of any fine imposed; the terms of any supplementary orders made.
iv. disqualification orders
Any high managerial agent convicted under the legislation could conjointly, at the discretion of the Court, be disqualified from acting in any managerial capacity for up to 15 years. Further still, any person found to be in breach of a disqualification order is liable: to a fine of up to 5m and/or imprisonment of up to two years; to disqualification for a further ten years and; to repay to the undertaking any monies paid to that person whilst they were acting in breach of the disqualification order.
The aim of the legislation is clear; to put in place law which would guarantee that corporate entities and officials across a range of industries including healthcare; construction; manufacturing and; agriculture uphold a high standard of care in relation to their obligation to ensure the safety of persons affected by and/or connected with their activities. The aim is to not only deter them from behaving irresponsibly and without due regard for the welfare of others, but also to encourage a proactive rather than reactive approach to addressing workplace safety and public well-being.
It will be hoped that the possibility of significant monetary penalisation of undertakings will be enough to prevent corporate manslaughter in the future but, should it not be, the prospect of up to 12 years imprisonment and/or a personal fine for grossly negligent management causing death by those considered to be high managerial agents will certainly go a long way to ensuring that greater care and attention is given to the subject.
As at the time of writing the Corporate Manslaughter (No. 2) Bill 2016 is currently at the second stage, having reached there on 26 October 2016. It is worth noting that since the Report on Corporate Killing some 12 years ago, all attempts at introducing corporate manslaughter legislation in Ireland have failed to progress past the initial phase.