Only yourselves to blame

The Corporate Manslaughter and Corporate Homicide Act, which came into force in April, means that companies that cause a person’s death by to a “gross breach” of a relevant duty of care will be liable to a criminal conviction

This new crime has replaced the common law offence of manslaughter by “gross negligence” so far as corporations are concerned.

Construction companies need to be aware of the practical effects of this important change in the law; in particular, the difference it makes to the prosecution process.

The law previously in effect was the general common law rule, which related to individuals, not corporations. Under it, “gross negligence” had to be “so bad” as to be a crime. The leading case in the House of Lords is Regina vs Adomako (1995), in which the Lord Chancellor clearly set out the old law as follows: “The essence of the matter, which is supremely a jury question, is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission.”

The new act now refers to a “gross breach” that is tested under section 1(4)(b) as “far below” what can reasonably be expected of the organisation in the circumstances.

It provides a detailed, codified set of specific rules for construction companies which, though in line with the common law test, makes the job of the police, the Crown Prosecution Service (CPS) and the Health and Safety Executive precise and clear, but also gives contractors fair notice of what they need to do to avoid prosecution.

At trial the CPS has to clear four hurdles. First, the judge has to make findings of fact necessary to decide the question of law as to whether the construction company owed a duty of care in the law of negligence to the deceased, which includes any statutory provision. The judge will ignore assertions that the deceased accepted the risk of harm as provided by sections 2(4), (5) and (7) of the act.

The jury will need to decide whether the senior management of a construction company was a substantial element in the gross breach of the duty of care

Second, the jury will have to find as a question of fact that the construction company’s activities were managed or organised to “cause” the person’s death under section 1(1) of the act.

Third, the jury will then have to find as a fact whether that was a “gross breach” of duty. To do this, the jury under section 8(2) of the act has to consider whether the construction company failed to comply with health and safety legislation, including the Health and Safety at Work Act 1974 and, if so, (a) how serious that failure was, and (b) how big a risk of death it posed.

The jury may also consider the construction company’s attitudes, policies, systems or accepted practices that were likely to encourage the above, and have regard to health and safety guidance: that is, Health and Safety Executive codes, guides, manuals and other publications.

Lastly, the jury will need to decide whether the “senior management” of the construction company was a substantial element in the “gross breach” as provided by section 1(3) of the act: the senior management includes both those persons who played a significant role in the making of decisions and those actually managing or organising the work.

This criminal process is more far reaching than the common law test. Moreover, the “corporate” class of person whose acts or omissions are to be reviewed at trial could not have previously been prosecuted.

Surely the time has come for construction companies to take note of health and safety matters and ensure their organisation, management practices and documentation would be found to be in order and compliant if they were reviewed in a criminal prosecution.