UK: Corporate Manslaughter Reforms Now Expected By April 2007

On 31 July 2006, Gillian Beckingham, the Senior Architect at Barrow-in-Furness Council was acquitted of manslaughter in relation to the deaths of seven people from legionnaires’ disease. However, while the court was deliberating on whether Ms Beckingham was criminally responsible for those deaths, the Government laid legislation before Parliament to make it easier to prosecute corporations for work related deaths.

The Corporate Manslaughter and Corporate Homicide Bill (the ‘Bill’) laid before Parliament on 19 July 2006 is the culmination of years of debate on the reform to the corporate killing laws. There is for the first time a Bill before Parliament. The Bill proposes to legislate to reform the law in England & Wales and Scotland and the new law could be in force as early as April 2007. The Bill is symptomatic of a change in attitude in favour of making companies and other organisations criminally accountable for manslaughter following work related deaths. The effects on a company and its employees of being investigated for such a serious offence can be enormous. Investigations alone are hugely disruptive. Prosecutions are rare, but when they happen they are long, costly and distressing. It is therefore extremely important that the risk of being subject to such a case is properly managed. The Current Law Following a work related death the Police, with assistance from the Health and Safety Executive, should always investigate:-

1. whether the death resulted from an individual's gross negligence (in Scotland, there is a slightly different test based on recklessness); and
2. whether that individual was sufficiently senior in the organisation to represent its controlling mind, such that his guilt should equate to the company also being guilty of manslaughter (the ‘identification principle’). On the face of it this may seem relatively straightforward, but prosecutions following work related deaths have proved to be a vexing issue for prosecutors.

The prosecution of Barrow-in-Furness Council and Gillian Beckingham is demonstrative of the difficulty the prosecution currently faces with securing manslaughter convictions. Seven people died and hundreds of others were infected by a legionella outbreak that resulted from the cancellation of a contract to ensure that necessary tests were carried out on an air conditioning unit. Although the prosecution secured convictions against the Council and Ms Beckingham for contravening health and safety legislation, they failed to secure convictions for manslaughter. The prosecution of the Council for corporate manslaughter, like the majority of previous corporate manslaughter cases, failed due to the ‘identification principle’. The Judge questioned whether anyone, let alone Ms Beckingham, could be said to be in control of the Council given the interplay between the electorate, elected councillors across the council chamber and paid officials like Ms Beckingham.

The Government proposed some time ago that this Achilles' heel of the current law needed to be addressed to make it easier for corporations to be convicted. The difficulty with reforming the law is to define a test which captures the essence of corporate responsibility for work related deaths and replaces the mental element of an individual guilty offender with something workable for an organisation. It needs to distinguish between failings that, on the one hand, are so opprobrious that a prosecution for corporate manslaughter is warranted, and, on the other less serious failings which do not warrant a corporate manslaughter prosecution and should be dealt with under the existing health and safety laws.

An organisation will be guilty of corporate manslaughter if a gross management or organisational failing causes a person's death. The new offence will apply to management failings by an organisation's senior managers - either individually or collectively. The focus has therefore moved from the culpable individual to the aggregation of senior managerial responsibility.

A gross failure is defined as conduct which ‘falls far below what can reasonably be expected of the organisation in the circumstances’. In assessing whether there has been a gross failure the proposed law will require a consideration of whether the organisation complied with health and safety legislation and guidance, and whether the attitudes, policies, systems or accepted practices within an organisation were likely to have encouraged or produced tolerance of noncompliance with health and safety law. It will be for the jury to assess whether any breaches of health and safety law and guidance are sufficiently serious to warrant convicting for manslaughter. Unfortunately, with hindsight failures can often appear worse than they actually were. What is clear is that the line between a health and safety offence and a corporate manslaughter offence will not be one that is easy to draw.

The Bill will inevitably lead to greater consideration of corporate manslaughter charges following work related deaths. Prosecutors will be eager to establish the parameters of the new offence. Companies will need to be more cautious when dealing with the authorities following a work related fatality.

However, the main impact of the Bill is to reinforce the importance of compliance with existing heath and safety laws and guidance. It would be sensible for organisations to review their health and safety policies, arrangements and systems in advance of the Bill becoming law. It will be particularly important that the statements made in health and safety policies and documents are achievable in reality. Grandiose statements of intent may be best avoided as they could later prove to be a hostage to fortune, setting too high a standard for what can reasonably be expected from that organisation. The argument being the company failed to achieve the standard it set for itself.

• Determine who could be considered to be a ‘Senior Manager’ and assess their competency.

• Review health and safety policies to ensure the standards set are achievable.

• Review job titles to ensure they accurately reflect the seniority of the role.

• Increase health and safety training for senior management.

• Increase board scrutiny of health and safety compliance.

• Review procedures to ensure compliance with existing health and safety laws and consider steps to promote a health and safety culture.

• Put in place an accident management protocol for dealing with the authorities, with a lawyer commissioning privileged incident investigation reports and being instructed from the day of the incident to advise on responding to the criminal investigation process and witness interviews.