The Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008. The Act introduced a new criminal offence that applies to incorporated bodies, partnerships, trade unions and many Government bodies. It does not apply to individuals.
An organisation will be guilty of an offence if a fatality is caused by a gross breach of a relevant duty of care and where the way that the organisation’s activities were organised or managed by its senior managers was a substantial element of the breach.
The legislation was introduced following a series of unsuccessful prosecutions against large organisations. Under the preexisting common law it was necessary to identify fault on the part of the “directing mind” of the accused company and for large organisations with complex management structures that often proved impossible. The new Act focuses attention on the actions of “senior managers”.
It was not until 2011 that the first prosecution under the new legislation was commenced at Winchester Crown Court. In that case a young geologist was killed following the collapse of an unsupported trench that he was working in. His employer was a small company with only one director and as a consequence the guilty verdict in that case did not tell us much about how the courts will go about identifying “senior managers”.
What we did learn from that first case is that fines will be higher than we are used to seeing for health and safety offences. In this particular case the court looked to sentencing guidelines that suggested that a fine for Corporate Manslaughter should rarely be less than £500,000 and weighed that against the financial position of the company. The prospect of job losses appears to have weighed heavily with the court and the fine imposed was £385,000.
The second prosecution under the legislation was commenced in July of this year with charges brought again Lion Steel Ltd. The company will be charged with corporate manslaughter and three directors of the company are charged with gross negligence manslaughter. Both the company and the directors are also charged with offences under the Health and Safety at Work etc Act 1974.
The prosecution follows the tragic death of an employee following a fall through a fragile roof panel at an industrial estate.
This second case involves a slightly larger organisation and it will be interesting to see how the court applies the legislation in a case where three directors are alleged to have been involved in the breach of duty.
The case law in respect of Corporate Manslaughter (Corporate Homicide in Scotland) is developing very slowly and it remains difficult to predict precisely how the legislation will work when applied to a large organisation. So far we have seen that it can be applied successfully to small companies and that the fines will be significant. The message remains that employers must take steps to ensure that they have in place a sound health and safety regime with strong leadership from the highest levels.