Guide to the Corporate Manslaughter and Corporate Homicide Act 2007

The Corporate Manslaughter and Corporate Homicide Act 2007 (“the Act”) comes into force on 6th April 2008. It makes provision for a new offence of corporate manslaughter (to be called corporate homicide in Scotland) and will apply to companies and other incorporated bodies, as well as certain government bodies and unincorporated associations.

Prior to the new Act, it was possible for a corporate body to be prosecuted for gross negligence manslaughter. For this offence to be committed, a company had to be in gross breach of a duty of care owed to the victim. The Act abolishes the application of the common law offence of gross negligence manslaughter to corporate bodies and other incorporated associations to which it applies.

The New Offence

The new offence builds on key aspects of the common law offence of gross negligence manslaughter, 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. The new Act states that an organisation which is covered by the Act will be guilty of the new offence if the way its activities are managed or organised causes a person’s death, and amounts to a gross breach of a relevant duty of care owed by the organisation to the victim.

Who is liable?

Prior to the new Act, before a company could be convicted of manslaughter by gross negligence, it also had to be proved that a senior individual in the company, who could be said to embody the company in his actions and decisions, also had to be guilty of the offence. This made it very difficult for successful prosecutions of companies in the past. However, the new Act has no similar requirement, and a company can be prosecuted without the need to show individual culpability.

The new Act is applicable to all bodies corporate, whether incorporated in the UK or elsewhere. This includes companies incorporated under companies legislation, statute or by Royal Charter.

Partnerships are not corporations and so lack a distinct legal personality for the purpose of owing a duty of care in the law of negligence. However, the new Act now specifically includes partnerships covered by the Partnership Act 1890, Limited Partnerships registered under the Limited Partnerships Act 1907, trade unions and employers’ associations; where these entities are employers. Limited Liability Partnerships created under the Limited Liability Partnerships Act 2000 are considered bodies corporate and so fall within the scope of the legislation as such.

Who is the duty owed to?

An organisation owes a duty of care:

To its employees or to other persons working for the organisation, for example contractors, secondees or volunteers;
As occupier of premises / land, and is included to ensure organisations keep premises / land they occupy in a safe condition;
As a supplier of goods or services. This provision will cover, for example, duties owed by transport providers to their passengers;
When constructing or maintaining buildings, infrastructure or vehicles or when using plant or vehicles. This provision covers duties of care owed to ensure adequate safety provisions are taken, for example when maintaining the safety of vehicles used in commercial operations;
When carrying out other activities on a commercial basis. This provision covers all other commercial activities which are not the supply of goods and services but are still performed by corporate entities, for example mining and farming.

Prosecutions

The new offence will be triable in the Crown Court only, and it will be for a jury to consider whether the breach of duty involved in the management failure was “gross”. The test for the jury, which is contained in the Act, asks whether the conduct that constitutes this failure falls far below what could reasonably have been expected.

Sentencing

The penalty, if found guilty, is an unlimited fine.

In addition, the Court has the power to make a “Remedial Order” and / or a “Publication Order”.

A Remedial Order gives the court the power to order the organisation to take steps to remedy the management failure which led to the death, and may also require the organisation to address deficiencies in health and safety management which led to the relevant breach of duty.

A Publication Order enables the court to order a convicted organisation to publicise, in a manner specified by the court, the fact of its conviction, specified particulars of the offence, the amount of any fine imposed and the terms of any Remedial Order that has been made.

Failure to comply with either a Remedial Order or a Publication Order is an offence, triable only in the Crown Court, the penalty for which is an unlimited fine.

Points to Note

Personal Liability – the new Act specifically excludes secondary liability for the new offence, where an individual has aided, abetted, counselled or procured in the commission of the offence. This does not, however, affect an individual’s liability for other offences such as gross negligence manslaughter or health and safety offences.

Double Jeopardy – A conviction under the new Act would not prevent an organisation from being also prosecuted under alternative legislation on the same facts, for example health and safety, where this were in the interests of justice.

Advice

Preparation for the Act before it comes into force is an absolute necessity for all corporate entities. You should ensure that all risk assessments and health & safety regimes are reviewed and up to date, as well as examining the level and extent of insurance policies. Most insurance only covers defence costs to the Magistrates’ Court, and will therefore be of no assistance for prosecutions under the new Act, which is triable in the Crown Court only.

WHO DO I CONTACT FOR MORE INFORMATION?

For more information, or if you have any questions, please contact David Smith on 01895 201747, or e-mail david.smith@turbervilles.co.uk graphic blocks