Corporate Manslaughter

Corporate Manslaughter Bill is on the Way

The Corporate Manslaughter Bill has been in progress for a long time since it was first recommended more than a decade ago. Since then we have seen many “false dawns”.

However, progress through the parliamentary process is now quite advanced so that, with a fair degree of confidence, we can expect it to become law during 2007. It will apply to England, Wales, Northern Ireland and Scotland.

Corporations and most public bodies will be covered by the Bill, though not the Crown – to the dismay of many trade unions. However, in general the Bill is being welcomed by a broad range of organisations, including the TUC and CBI

So what is the reason for this new Bill?

Its justification is perhaps well summed up in the words of Gerry Sutcliffe – Home Office Minister, who is reported as saying:

“For too long the law has made it extremely difficult to bring to justice large companies whose management failures have resulted in death. The publication of the Corporate Manslaughter and Corporate Homicide Bill shows the Government’s commitment to bringing forward a criminal offence so that companies that have dismally failed to pay proper attention to people’s safety are brought to book.”

Until now it has proved very difficult to successfully prosecute an organisation for corporate manslaughter. To do so, it is first necessary to identify a “controlling mind” in the organisation – someone who can be demonstrated as directing the activities of the organisation.

In addition, that person must be found personally guilty of manslaughter, through a gross breach of their duty of care toward an individual who was killed as a result of their negligence.

In the case of larger organisations, these hurdles have proved to be insurmountable barriers to prosecuting the organisation itself, even when the evidence for a major failure is abundantly clear – consider for example some of the more high profile rail and ferry disasters. Over the past 14 or 15 years, there have been only 7 successful prosecutions and in every case it has been a small organisation where a director has been intimately involved in the day to day control of the organisation’s activities.

So how are things set to change?

The most significant change with the new Bill is that it will no longer be necessary to find a “controlling mind” guilty of manslaughter before an organisation can be prosecuted for corporate manslaughter.

The burden of proof will be summed up in the following three points:

The organisation clearly owed a duty of care to a person who was killed and that duty was breached
The breach of duty is considered to be a “gross breach”, meaning that it falls far below that which is reasonable in the circumstances.
A substantial element of the breach can be traced back to failures by senior management.

Although there is no provision under the new Bill to impose penalties on individual officers of the organisation, they may still be prosecuted as individuals with the charge of manslaughter.

Wider implications

The implications for prosecution of corporations (and separately of individuals) are self evident. What is perhaps less obvious is the consequence of an investigation associated with the case. The prosecution will be seeking to identify all points of failure within an organisation, which implies extensive investigation of activities, behaviour patterns, attitudes, systems, policies, etc throughout the organisation. Apart from the disruption, such revelations, coupled with a conviction could prove devastating for the public standing and business prospects of any company.

Every organisation would be wise to avoid ever facing such a prosecution and the best defence is to have in place robust health and safety policies and systems.

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