By Michael Nadin - Associate Solicitor The government has confirmed that it intends to bring…
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The Corporate Manslaughter and Corporate Homicide Act 2007 established a new statutory offence of corporate manslaughter (corporate culpable homicide in Scotland).
An organisation is guilty of the offence if the way in which it manages or organises its activities causes a death and amounts to a gross breach of a relevant duty of care to the deceased. A substantial part of the breach must have been in the way activities were managed by the senior management of the organisation.
The offence built on the responsibilities that employers and organisations already owed to their employees and members of the general public, with regard to the premises occupied and the activities carried out. Under the Act, the offence is concerned with the corporate liability of the organisation itself, allowing this to be assessed on a wider basis and providing greater accountability for serious management failings across the organisation than was possible hitherto.
When determining whether an organisation is guilty of the offence of corporate manslaughter, the courts will look at management systems and practices across the organisation and whether an adequate standard of care was applied to the fatal activity. Juries are required to consider the extent to which an organisation was in breach of its health and safety obligations and how serious those failings were. They are able to consider the culture that exists within an organisation regarding health and safety issues. Lax management attitudes that result in a lower standard of care than could reasonably be expected will be punished.
An organisation convicted of corporate manslaughter may receive:
- an unlimited fine;
- a publicity order requiring the organisation to publicise its conviction and certain details of the offence; and
- a remedial order requiring the organisation to address the cause of the fatal injury.
Cases brought under the Act took a while to reach court, with the first prosecutions involving small companies. However, more recent cases, although few in number, show that the courts take very seriously breaches of health and safety laws that lead to someone being killed.
Before the introduction of the Act, an organisation could only be convicted of manslaughter if a ‘directing mind’ – i.e. a senior manager or director – was also personally liable, but this did not reflect the reality of the way decisions are made in large organisations and as a result there were very few prosecutions. The offence of ‘gross negligence manslaughter’ continues to apply to individuals, however. Prosecutions against individuals are taken where there is sufficient evidence and it is in the public interest to do so.
A consultation paper published in July 2017 by the Sentencing Council for England and Wales proposed that the current law on manslaughter committed by negligent employers should be beefed up, with longer potential terms of imprisonment for individuals found guilty of gross negligence manslaughter. This resulted in the publication of the ‘Manslaughter – Definitive Guideline’, which sets out how offenders convicted of manslaughter should be sentenced in England and Wales. In cases of gross negligence manslaughter, judges are being advised to consider a sentence of life imprisonment for the most serious culprits, with a recommendation that they serve at least 18 years before being eligible for parole. In a workplace setting, the offence could cover individual employers whose long-standing and serious disregard for the safety of employees, motivated by cost cutting, results in someone being killed. The guideline applies to sentences handed down from 1 November 2018.