Corporate Manslaughter Bill
David Leckie, partner at Maclay Murray & Spens, looks at the draft legislation on corporate manslaughter.
The government's long-awaited draft Corporate Manslaughter Bill (PDF format) was published on 23 March 2005. Under the draft, 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 is an unlimited fine.
Why does the existing common law of corporate manslaughter need to be changed?
This proposed change in the law was first raised by the Law Commission in 1996 and was part of the Labour 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 have included the 1987 prosecution of 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 cross-channel ferry 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.
In Scotland, the attempt to prosecute Transco in 2004 for culpable homicide (the Scottish equivalent of manslaughter), following a gas explosion which killed a family of four, failed for the same reasons.
The only cases in which prosecutions have succeeded have been where the defendant company is very small. In 1994, OLL was the first company to be convicted of corporate manslaughter, following the deaths of four students in a canoeing accident in Lyme Regis. The managing director was also convicted and sentenced to two years imprisonment. There have been only a handful of successful prosecutions since then, all have involved small companies.
Despite this, the Crown Prosecution Service has continued to attempt corporate manslaughter prosecutions.
The most notable current examples are the ongoing manslaughter prosecutions of Barrow Borough Council and one of its managers, following the deaths of seven people from legionnaires disease (this is the first prosecution of a local authority for manslaughter), and the Hatfield trial at the Old Bailey, 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?
No. 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 persons not in their employment are "not exposed to risks to their health and safety so far as is reasonably practicable".
In addition, there are 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 both organisations and individual employees, directors, officers and managers. The maximum penalty is an unlimited fine.
In some limited 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.
What are the main provisions of the bill?
The proposed test under the bill is that an organisation will be guilty of the 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.
Who can be prosecuted?
Corporations, as well as most government bodies, can be prosecuted under the new law. The bill does not apply to unincorporated bodies. Individuals, including directors, officers or managers, cannot be prosecuted for corporate manslaughter.
What are the penalties?
The maximum penalty for a corporate manslaughter conviction will be an unlimited fine. There are no sentences of imprisonment.
Although this is the same maximum penalty as under existing law, it is thought that the stigma attached to a corporate manslaughter conviction will be considerably greater than a conviction under existing law.
In addition, where an organisation is convicted of corporate manslaughter the court may also impose an order requiring it to remedy the breaches which led to the death. Failure to comply with a remedial order is punishable by a further fine.
How does this differ from the existing corporate manslaughter law?
While the penalties for corporate manslaughter under the bill are no stricter, the new law will make it easier for prosecutions to succeed, particularly against large organisations. This is primarily owing to the fact that under the new law 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.
Can I be prosecuted for both corporate manslaughter and breaches of existing health and safety legislation?
Yes. It is open to the prosecuting authorities to prosecute for both and highly likely that they will.
Can individuals still be prosecuted under the existing common law of manslaughter?
Yes. Where there is evidence that a fatality is caused by gross negligence, individuals can be prosecuted for manslaughter. For example, in September 2003 a teacher was jailed for 12 months for manslaughter, following the death of a 10-year-old pupil who drowned on a school adventure trip while in his charge.
As recently as January 2005, a managing director of building firm was sentenced to 16 months in prison by Manchester Crown Court following the death of a construction worker who fell from a roof.
Who will investigate and prosecute?
The investigation will be carried out jointly by the police and the Health and Safety Executive (HSE) or other appropriate regulatory body. The prosecution will be conducted by the Crown Prosecution Service
Does the bill apply to Scotland and Northern Ireland?
No. At present the bill applies only to England and Wales. However, it is almost certain that an identical or similar law will be passed in Scotland and Northern Ireland.
When will the bill become law?
The bill has received a cautious welcome from organisations such as the CBI, TUC and Centre for Corporate Accountability.
It is likely that the bill will be substantially debated and will become law in 2006.
What can companies do to protect themselves?
Companies and their employees must do everything reasonably practicable to ensure the health, safety and welfare of everyone affected by their activities. In particular, appropriate safety management systems should be set up and followed, with adequate training, supervision, monitoring and auditing.
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. Health and safety should be a boardroom issue and the HSE recommends the appointment of a health and safety director at board level.
David Leckie, partner, Maclay Murray & Spens
For further information:
www.corporateaccountability.org
