T he Queen’s Speech on 17 May confirmed that the long-awaited Corporate Manslaughter Bill will continue its passage through parliament this year.
The law of corporate manslaughter requires urgent clarification, so its inclusion in the Queen’s Speech was a welcome development.
As currently drafted, there are serious concerns with the Bill which parliament must carefully consider. The Bill links culpability with the actions of ‘senior management’ rather than the entire management chain. This is wrong in principle and could lead to some creative management structures and decision-making.
An ironic consequence of the bill is that managers who are prosecuted as individuals under the existing common law of manslaughter could well find themselves in a much more isolated position than under the present law, in that it is possible that their companies could adopt a ‘cut throat’ defence and seek to blame everything on the individual.
Under the draft bill, which is likely to be substantially debated in parliament and not become law until 2006, an organisation will be guilty of the new offence of corporate manslaughter if the way in which any of its activities are managed or organised by its senior managers causes a person’s death through a gross breach of a duty of care.
The maximum penalty will be an unlimited fine, and the law will apply to workplace fatalities that occur after the Act comes into force. Currently the bill only applies to England and Wales, but Scotland and Northern Ireland will almost certainly pass an identical or similar law.
Why change the law?
Changes to the corporate manslaughter laws were first proposed by the Law Commission in 1996 and were part of the government’s election manifesto in 2001.
The reason for the change is that it is widely-thought that the existing common law of corporate manslaughter is inadequate. For such a prosecution to succeed, the Crown must identify and prosecute an individual who acted as the ‘directing’ or ‘controlling mind’ of the defendant organisation. This makes it virtually impossible to convict large organisations.
High profile failures include the 1987 prosecution of ferry operator P&O, which was the first company to be charged with corporate manslaughter. Seven of the company’s directors were also charged with manslaughter following the deaths of 192 people when the Herald of Free Enterprise capsized. All manslaughter charges failed because the prosecution was unable to identify the individual within P&O who acted as the controlling mind of the company.
More recently, the manslaughter charges against Barrow Borough Council and one of its managers, following the deaths of seven people from legionnaires disease, also failed to secure convictions.
The only cases in which prosecutions have succeeded have been where the defendant company is small. In 1994, OLL was the first company to be convicted of corporate manslaughter, following the deaths of four students in a canoeing accident. The managing director was also convicted and sentenced to two years imprisonment. There have been only a handful of successful prosecutions since then, all in respect of small companies.
Despite this, the Crown Prosecution Service (CPS) continues to attempt corporate manslaughter prosecutions. The most notable current example is the ongoing Hatfield trial, where Balfour Beatty and five employees of Balfour Beatty and Railtrack are being tried for manslaughter and health and safety offences, following the Hatfield rail crash in October 2000.
Does the Bill affect the Health and Safety at Work Act?
The proposed new corporate manslaughter law will not affect the provisions of the Health and Safety at Work etc Act 1974 (HSWA) or its associated health and safety regulations in any way. All employers must still comply with their duties under existing health and safety legislation.
The HSWA imposes a duty on employers to “ensure so far as is reasonably practicable, the health and safety and welfare at work of all its employees” and to ensure that people not in their employment are “not exposed to risks to their health and safety so far as is reasonably practicable”.
There are also hundreds of health and safety regulations which set out more specific health and safety duties. For example, under the Management of Health and Safety at Work Regulations 1999, employers must carry out a ‘suitable and sufficient’ risk assessment of their activities.
Failure to comply with existing health and safety legislation can result in a criminal prosecution of organisations and individual employees, directors, officers and managers. In some circumstances, such as a failure to comply with a prohibition notice, sentences of imprisonment can be imposed on individuals. A failure to comply with certain health and safety regulations can also result in civil liability. It is possible to be prosecuted for corporate manslaughter and breaches of existing health and safety legislation.
The Bill’s main provisions
The proposed test under the Bill is that an organisation will be guilty of corporate manslaughter if the way in which any of its activities are managed or organised by its senior managers causes a person’s death through a gross breach of a duty of care.
A ‘senior manager’ is someone who plays a significant role in either making decisions about how the organisation’s activities are managed, or who is involved in the actual management of those activities.
A breach of a duty of care will be ‘gross’ if the conduct which led to it falls below what could reasonably be expected of the organisation in the circumstances. This will be a question of fact for the jury to decide and jurors must also consider whether the organisation failed to comply with any relevant health and safety legislation or guidance.
If there was such a failure, the jury must decide its seriousness and whether the senior managers:
- knew or ought to have known that the organisation was failing to comply with such legislation or guidance
- were aware or ought to have been aware that this posed a risk of death or serious injury
- sought to cause the organisation to profit from that failure.
Who can be prosecuted?
The CPS can prosecute corporations, local authorities, NHS Trusts, as well as most Crown bodies under the new law, but the Bill does not apply to unincorporated bodies. Individuals, including directors, officers or managers, cannot be prosecuted for corporate manslaughter.
The new penalties
The maximum penalty for a corporate manslaughter conviction will be an unlimited fine. Although this is the same maximum penalty as under existing health and safety legislation, it is thought the stigma attached to a corporate manslaughter conviction will be considerably greater than a conviction under existing law.
The new law makes it easier for prosecutions to succeed, particularly against large organisations. This is primarily because the prosecution will not have to identify the ‘controlling mind’ behind the organisation’s activities. Instead, the prosecution will focus on the conduct of the senior management, both individually and collectively.
Individuals can still be prosecuted under the common law of manslaughter where there is evidence that a fatality is caused by gross negligence. For example, a teacher was jailed for 12 months for manslaughter, following the death of a pupil who drowned on a school trip while in his charge. What the Bill has done, however, is to abolish the common law offence of manslaughter by gross negligence in its application to corporations.
What should companies do?
Companies and their employees must do everything reasonably practicable to ensure the health, safety and welfare of everyone affected by their activities.
David Leckie is a partner at Maclay Murray & Spens
Tips for employers
- Know the law and all of the approved codes of practice and guidance. Keep up-to-date with changes and ensure this information is made available to all relevant employees and that your management systems reflect the changes
- Set up appropriate safety management systems and follow them with adequate training, supervision, monitoring and auditing. These systems should make it clear who is responsible for health and safety at all levels throughout an organisation
- All other appropriate documentation and procedures should be in place to ensure compliance with all applicable law, such as risk assessments, method statements and permits to work
- Make sure health and safety is adequately resourced. Do not cut corners – never put profit before safety
- Appoint a ‘competent’ person to discharge health and safety responsibilities. If there is no competency within your organisation, appoint reputable and competent external consultants
- Ensure that all injuries, accidents and near misses are reported
- Make sure all employees are clear about their responsibilities for health and safety and that this is clearly spelt out in their employment contracts
- Ensure any contractors are competent from a health and safety perspective and that the contractual documentation is clear in terms of who is responsible for health and safety
- Contact the HSE if you are unsure about something. A large part of its regulatory role is preventative rather than reactive. It helps to get to know your local inspectors and develop a good working relationship with them
- Health and safety should be a board-room issue and the HSE recommends the appointment of a ‘health and safety director’ at board level.
- Conduct regular audits to ensure that your safety management systems are being followed
- Ensure you have expert legal advice.
The full text of the bill can be found at http://www.homeoffice.gov.uk/docs4/tso_manslaughter.pdf.