Early warning

The Corporate Manslaughter and Corporate Homicide Act 2007, which comes into force on 6 April 2008, imposes criminal liability on organisations for manslaughter (or homicide under Scottish law).

The Health and Safety at Work Act 1974 already enables a prosecution to be brought against an organisation or a director if they expose people to risks to their health or safety.

A prosecution for manslaughter carries a greater stigma, though, and for technical reasons it has proved almost impossible to bring successful prosecutions against large firms for the offence of manslaughter by gross negligence.

What does the new act say?

There is one basic offence: if the way in which an organisation’s activities are managed or organised causes a person’s death and amounts to a “gross breach of a relevant duty of care”, it can be prosecuted.

The way in which activities are managed or organised must be seriously in breach. If there is a lack of involvement in health and safety at a senior level, the organisation is exposed to the risk of a prosecution.

A firm cannot protect itself by delegating health and safety responsibility to more junior managers, because that is a management decision.

If there is a serious accident, the organisation’s management of health and safety will arguably have been inadequate (otherwise the incident would not have happened). This would reflect on the senior management’s decision to delegate health and safety to a lower level, as well as the way in which health and safety responsibilities were discharged at that lower level.

A “gross breach” is one that “falls far below what can reasonably be expected of the organisation in the circumstances”. It is not intended to cover an accident resulting in loss of life caused by an organisation that is normally managed and run satisfactorily by senior managers.

Senior managers are those who have a significant role in making decisions about how the whole or a substantial part of the organisation’s activities are managed or organised, and those who carry out the management or organisation of the whole or a substantial part of the activities.

At a minimum, being a director of a company that is found guilty of manslaughter is not career enhancing

If I am a company director, does this put me at more risk?

Companies already have duties to the public under section 3 of the 1974 act. If they ignore health and safety, or fail to manage the risks inherent in their business, and this gives rise to a fatality, the company and a director can be prosecuted, leading to an unlimited fine. There is also the possibility of a prison sentence for the director.

Under the new act, the company will also face the risk of a conviction for corporate manslaughter or homicide, again leading to an unlimited fine.

The court can also make a remedial order and a publicity order. The remedial order requires the company to take specified steps to remedy the breach or any perceived deficiency in policies, systems or practices. The publicity order sets out detailed requirements to publicise the conviction, the fine and the terms of any remedial order.

At a minimum, being a director of a company that has been found guilty of manslaughter is not career enhancing.

Do I need to do anything now?

Check your organisation is up to speed on health and safety because the 1974 act applies already. A serious accident before the Corporate Manslaughter and Corporate Homicide Act comes into force could lead to a prosecution under the older legislation.

Will the act work?

Success is judged by the fact that nothing happens. If the act is never used, it will have achieved its purpose. It will have encouraged large organisations in particular to take health and safety sufficiently seriously that their activities do not result in deaths.

Remember: the act comes into force next April.