The saga of a corporate killing law, which has rumbled on in a highly unsatisfactory manner for more than 10 years, is finally reaching the home stretch. The Corporate Manslaughter and Corporate Homicide Act 2007 is scheduled to receive Royal Assent on 21 July. The one glitch at present is the dispute between the Commons and Lords as to whether the new law will apply to deaths in custody.
The Act will apply across the UK, despite attempts by the Scottish Executive to come up with a more “radical and innovative” law north of the border.
No trailblazer
After years of debate, consultation and rigorous scrutiny, we might have expected a ‘Rolls-Royce’ piece of legislation to emerge, which would sit proudly alongside the Health and Safety at Work Act – itself a remarkably robust and effective piece of legislation, which has been around for over 30 years and is still going strong. Instead, from the shadows of Westminster will come the roar of a revamped, and perfectly roadworthy, Mini Metro.
No individuals will be prosecuted under the new law, there will be no sentences of imprisonment, and many organisations that are unincorporated will not be caught by the provisions of the Act. And the maximum penalty under the Act – an unlimited fine – is the same penalty already available under existing health and safety legislation.
So what does the new law achieve? Without question, stigma and reputational damage will be the new law’s biggest weapon. The Lords introduced an amendment which means courts can make a ‘publicity order’, requiring convicted companies to publicise the conviction, the specified particulars of the offence and the level of fine. The consequences of such adverse publicity could far outweigh any fine.
Evidence
Although senior management cannot be prosecuted, their actions will be under the microscope as never before and will form a major part of the prosecution’s case. This is because, to secure a conviction, the Crown will be required to prove there was gross breach of a relevant duty of care and the way the defendant company’s activities were managed by its senior managers was a “substantial” element in the breach.
Organisational charts, board and safety committee minutes, e-mails, internal memos and all other relevant communications will be vital evidence to prove this.
The other big change that the new law brings is that the question of ‘safety culture’ is specifically addressed. In deciding whether a company is guilty of a gross breach of its duties, one of the factors for a jury to consider will be the “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”.
Safety culture, or lack of it, will become a key battleground at trial, and defendant companies will need to establish they had a positive, trusting and open environment in place, with effective lines of communication between management and workforce.
There is no doubt that once the new law is implemented, most workplace fatalities will be investigated by the police as well as the Health and Safety Executive. If government predictions are to be believed, such investigations will lead to corporate manslaughter prosecutions in only a handful of cases.
However, employers will still be subjected to the most demanding of challenges during the investigation stage, which can last for years. Police interviews of personnel, demands for documents, adverse publicity and the many other aspects of such investigations will all take a heavy toll on management time and staff morale.
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Key points on the corporate killing law
Unlimited fines, and courts may force companies to publicise their convictions through a ‘publicity order’, leading to severe damage to reputations.
‘Safety culture’ will be a key factor for juries to consider in deciding whether there was a gross breach.
The government predicts the number of investigations that lead to prosecution will be small, but the consequences of a long investigation will be considerable.
David Leckie, Partner in Health and Safety Law, Maclay Murray & Spens
