Corporate Manslaughter and Corporate Homicide Act 2007

The Herald of Free Enterprise sank off Zeebruge in 1987 with the loss of 188 lives. The subsequent manslaughter charges against P&O European Ferries in 1991 collapsed for want of evidence to prove the guilt of any “controlling mind” although the public enquiry concluded: “From top to bottom the body corporate was infected with the disease of sloppiness”. A public thirst for revenge against the directors was left unsatisfied. When Labour came to power in 1997 and proposed the first of many “Kill Bills” in their proposed legislative programme it looked as if the perceived gap in the legal armoury was to be plugged. On 6th April 2008 the Corporate Manslaughter and Corporate Homicide Act 2007 will come into force.

To any safety practitioner who has struggled for a slot on the Board Room agenda, the intervening decade will have a familiar feel. Successive Queen’s Speeches promised much, but a decided lack of will meant no new law as other priorities took precedence. Revitalising Health and Safety in 2000 has shaped much of the Regulator’s thinking and activity, but the Government action points on directors’ responsibilities, increasing penalties, extending the power to imprison to most offences and removal of Crown Immunity were slow tracked. Despite further public demands for retribution following various rail disasters, parliaments came and went. One stumbling block appears to have been the proposed removal of Crown Immunity. For Whitehall mandarins this must have seemed highly threatening and not conducive to them giving priority to the Bill’s progress. Also not helpful was a regular change of ministers holding the health and safety portfolio for short times, as part of a ministerial apprenticeship training scheme, before passing it on like a poisoned chalice; nor the fact that the HSC/HSE endured a period of being treated as a homeless orphan, with no settled parent Government Department while they were reorganised and rebadged. No matter. These events are in the dustbin of history. Being pragmatists the safety profession deals in realities, so what does the new law bring us?

The Offence

The offence is Corporate Manslaughter in England, Wales and Northern Ireland or Corporate Homicide in Scotland. Incidentally, the offence of manslaughter is abolished so far as organisations are concerned.

“An organisation is guilty of the offence if the way in which its activities are managed or organised:

1. causes a person’s death, and
2. amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.”

However, an organisation is guilty of an offence only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach. Senior management is defined in terms similar to our current understanding of the “controlling mind”. Thus fatalities resulting from acts or omissions by lesser-ranked managers, supervisors or even employees will not attract the attention of this Act.

This offence can be committed by a corporation, a police force, a partnership or a trade union or employers’ association and by the vast majority of Government Departments that are listed in the Schedule to the Act.

I hope most of you recognise the term “duty of care” and the link to the common law tort of negligence. If not then your studies will surely enlighten you very soon! Of course we are talking criminal law here, so the burden of proof will be the higher test of beyond all reasonable doubt. The Act goes on to define the neighbour test and rule some public functions as not in scope to the duty of care obligation. For most non-lawyers the degree of reading difficulty posed by the Act is in inverse proportion to the significance and I do not propose to expand further here.

Gross Breach

This phrase will, in my opinion, be of much importance implying as it does something much more than an ordinary breach of a duty of care. The Act says “a breach of a duty of care by an organisation is a gross breach if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances” (my italics). Herein lies plenty of scope for the legal profession to benefit handsomely with the weasel words and wriggle room provided. Only time and decided cases will give us clarification. In my view this is a stiff test for any prosecution to prove to the criminal burden of proof. I foresee that the next major accident involving loss of life will provoke the usual public outcry. Consequently the Crown Prosecution Service will be under pressure to bring charges despite their normally conservative approach. You may know that previous cases of corporate manslaughter collapsed because it was necessary to prove guilt of the controlling mind first. This Act attempts to break the link, but at this point in time I have difficulty seeing how a key element of corporate guilt, which requires of the body corporate that the way its activities are managed or organised by its senior management is a substantial element in the breach, can be proven easily.

The Act contains a section (8) entitled “Factors for the Jury”. Effectively guidance is given to the jury and the factors include any breaches of health and safety law, together with how serious was the breach and how serious the potential consequences (a bit odd since somebody has already died!). In a clear throwback to the P&O case this section also says the jury should “consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure as is mentioned in subsection (2), or to have produced tolerance of it”.

However, I fear the “gross” test and the necessity to link to the activities of senior management will still be a big stumbling block implying as they do something more than bumbling incompetence by management. As now, only in small companies and against individuals is a prosecution likely to be successful.

The Punishment

Here, in my view, the Act has really lost connection with its roots. The primary driver was always a public wish for highly paid individuals sitting in plush offices to suffer personal loss of liberty for any corporate failings that resulted in fatalities. This will not happen. The only penalty will be financial on the body corporate. You will know of the current police/HSE protocol where in the event of work related death the initial assumption is that there may be a potential offence of manslaughter with the police taking the investigative lead. Only when the police drop out do HSE have the option of bringing charges under the Health and Safety at Work etc. Act 1974. Conventional wisdom argues that corporate manslaughter is seen as a more serious offence carrying more significant penalties than provided under HSWA. The perception is of the HSWA being some kind of lower league offence. Personally I don’t agree. Admittedly there is often debate about the inadequate size of fines, but surely this debate will be ever present whichever Act is used. The differences between this Act and HSWA are more a matter of spin than actuality, and we should not forget that HSWA has neat sections to deal with individuals in S36 and S37 that the Corporate Manslaughter and Corporate Homicide Act lacks.

One unusual punishment does exist. The Act provides for remedial and publicity orders to be made by the Court. Given the inevitable time lag between the offence and any trial remedial orders may have been rendered redundant, but the publicity orders are of interest. The organisation may be required to itself publicise its conviction and the fine imposed: something akin to washing dirty laundry in public and also in keeping with the “Revitalising” action point on naming and shaming offenders. This will be something done in addition to normal press reporting.

Miscellaneous

In this article I have dealt with the principal features of the Act as might be of interest to most of you. I do not propose to complicate the picture with the exclusions that apply to the margins, e.g. application to prisoners, during active service with the armed forces or emergency services responses or to Local Government policy makers, etc. Also the fuller picture on responsibilities on directors or similar officers would not be complete without reference to HSE’s recently updated 2001 document on directors’ responsibilities and, for FTSE listed companies, the Turnbull Report regarding risk assessment of business liabilities, including for health and safety. Taken together these are good news of a progressive, proactive raising of the health and safety profile over the last decade.

Conclusion

I have endeavoured to give opinion in the body of this article and my slightly jaundiced view of this Act has shown itself at various points along with rare words of credit. I’m sure many will disagree. Until an enterprising training provider finally manages to teach hindsight we will all just have to wait and see.

References

R v P & O European Ferries (Dover) Ltd (1991)

opsi.gov.uk

hse.gov.uk/Revitalising Strategy

hse.gov.uk/Leadership

“Internal Control: Guidance for Directors on the Combined Code", the report of the Institute of Chartered Accountants in England and Wales on Corporate Governance published in September 1999 (ISBN 1 84152 010 1)

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