The purpose of the Corporate Manslaughter and Corporate Homicide Act 2007 is quite straight forward and is intended to find corporate organisations guilty in respect of deaths caused by their negligence.
It removes the onerous requirement of the current law requiring proof of personal and individual guilt of manslaughter of one of the “controlling minds” of the company. This requirement had always made it notoriously difficult for medium to large sized organisations to be held properly accountable for deaths occurring in the course of their employment.
Its provisions will not come into force until the 6th April 2008 and operators of nightclubs need to reflect on its implications.
The new legislation poses no additional regulatory burdens upon organisations. It simply changes the way in which blame is apportioned and broadens the categories of those who may be prosecuted. Under the old common law offence of manslaughter only individuals and corporate bodies could be prosecuted. The new offence extends to partnerships, trade unions, employers bodies, police forces and government bodies but that is of academic interest to operators.
The new offence will be committed by an organisation “if the way in which its activities are managed or organised a) causes a persons death, and b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased”.
Operators need to realise that the organisation will in fact mean the “Senior Management” of that business, although the legislation is a bit vague on what exactly this expression will mean. However the new legislation will clearly not apply to deaths which are caused by the negligence of co-workers, for example
The new legislation poses no additional regulatory burdens upon organisations. It simply changes the way in which blame is apportioned and broadens the categories of those who may be prosecuted. Under the old common law offence of manslaughter only individuals and corporate bodies could be prosecuted. The new offence extends to partnerships, trade unions, employers bodies, police forces and government bodies but that is of academic interest to operators.
The new offence will be committed by an organisation “if the way in which its activities are managed or organised a) causes a persons death, and b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased”.
Operators need to realise that the organisation will in fact mean the “Senior Management” of that business, although the legislation is a bit vague on what exactly this expression will mean. However the new legislation will clearly not apply to deaths which are caused by the negligence of co-workers, for example
Of particular interest is the fact that the legislation does not require proof that any individual is guilty of an offence (as was the case under the old law) but simply allows the tallying up of a series of management errors which demonstrate that an organisation was criminally negligent.
The test will be whether the conduct alleged is a gross breach of any civil duty of care i.e. that the breach falls far below what can reasonably be expected of the organisation in these circumstances.
The possibility of an unlimited fine or conviction is unattractive enough. In addition, the court may make a “publicity order” requiring the convicted company to publish details of the offence and the penalties. Whether naming and shaming will help anyone remains to be seen!
The new legislation does not alter the position with regard to individual liability for Directors or anyone else in the organisation. They may still be prosecuted as before if gross negligence can be established in the conduct of their individual roles.
Operators will need to decide what steps – if any – they need to take to protect themselves from what is perceived by many as a legislative change making it easier to secure convictions against the corporate entity.
The test will be whether the conduct alleged is a gross breach of any civil duty of care i.e. that the breach falls far below what can reasonably be expected of the organisation in these circumstances.
The possibility of an unlimited fine or conviction is unattractive enough. In addition, the court may make a “publicity order” requiring the convicted company to publish details of the offence and the penalties. Whether naming and shaming will help anyone remains to be seen!
The new legislation does not alter the position with regard to individual liability for Directors or anyone else in the organisation. They may still be prosecuted as before if gross negligence can be established in the conduct of their individual roles.
Operators will need to decide what steps – if any – they need to take to protect themselves from what is perceived by many as a legislative change making it easier to secure convictions against the corporate entity.
This article is not intended to be a definitive guide to the law. We thought that it might be helpful to remind us operators that it would be a good time to reflect on our staff training (of existing as well as new employees), our internal procedures and our insurance policies.
