The Corporate Manslaughter and Corporate Homicide Act comes into force on the 6th April 2008. Are we all ready?
The Act makes provision for a new offence of corporate manslaughter and for this to apply to companies and other incorporated bodies, Government departments and similar bodies, police forces and certain unincorporated associations.
Prior to this legislation it was possible for a corporate body, such as a company, to be prosecuted for a wide range of criminal offences, including manslaughter. To be guilty of the common law offence of gross negligence manslaughter, a company had to be in gross breach of a duty of care owed to the victim. The prosecution of a company for manslaughter by gross negligence was often referred to as "corporate manslaughter". As the law stood, before a company could be convicted of manslaughter, a "directing mind" of the organisation (that is, a senior individual who could be said to embody the company in his actions and decisions) also had to be guilty of the offence. This is known as the identification principle. Crown bodies (those organisations that are legally a part of the Crown, such as Government departments) could not be prosecuted for criminal offences under the doctrine of Crown immunity. In addition, many Crown bodies, such as Government departments, do not have a separate legal identity for the purposes of a prosecution.
Therefore it was extreemely difficult to actually have a sussecful procecution in this matter.
The new offence builds on key aspects of the common law offence of gross negligence manslaughter in England and Wales and Northern Ireland. However, rather than being contingent on the guilt of one or more individuals, liability for the new offence depends on a finding of gross negligence in the way in which the activities of the organisation are run. In summary, the offence is committed where, in particular circumstances, an organisation owes a duty to take reasonable care for a person's safety and the way in which activities of the organisation have been managed or organised amounts to a gross breach of that duty and causes the person's death. How the activities were managed or organised by senior management must be a substantial element of the gross breach.
The elements of the new offence are:
The organisation must owe a "relevant duty of care" to the victim.
The organisation must be in breach of that duty of care as a result of the way in which the activities of the organisation were managed or organised.
The way in which the organisation's activities were managed or organised (referred to in these notes as "the management failure") must have caused the victim's death. The usual principles of causation in the criminal law will apply to determine this question. This means that the management failure need not have been the sole cause of death; it need only be a cause.
The management failure must amount to a gross breach of the duty of care. The Act sets out the test for whether a particular breach is "gross". The test asks whether the conduct that constitutes the breach falls far below what could reasonably have been expected. The Act sets out a number of factors for the jury to take into account when considering this issue. There is no question of liability where the management of an activity includes reasonable safeguards and a death nonetheless occurs.
To read the act in full go to: CORPORATE MANSLAUGHTER AND CORPORATE HOMICIDE ACT 2007
In reallity, whilst this will be hyped in the press and by many companies selling products, the basic requirements of managing Health & Safety in the workplace have not changed. If your current systems for the management of Risk (Health & Safety) in your organisations are robust then little will change or require to change. If on the other hand you do not know whether they are robust enough or are aware of weaknessess then now would be a good time to review them. This need not be a start from the begginning but at least an audit to determine where work may be required. If you would like support in the process please give us a call we are only to happy to discuss your requirements.