Background
The introduction of the offence of corporate manslaughter (corporate homicide in Scotland)1 in April 2008 was inevitably going to trigger debate – as to whether the offence will provide the panacea for all ills when it comes to corporations being held accountable for deaths that occur in connection with the organisation, whether the Act is a sop to those who have campaigned for its introduction for the past ten years – or that perhaps that the reality is somewhere in between.
Few people will be ignorant of the Act's tortuous passage through Parliament, and the extensive and protracted debates on its provisions. Reform of the law in this area had been on the drawing board for over a decade – prompted by a high degree of public concern about the perceived inability of the law to deliver justice against large corporations where death occurred. This concern was further fuelled and heightened in the wake of a number of high-profile rail accidents where prosecutions for gross negligence manslaughter had failed or could not be brought.
Expectations that the Act will address and rectify the failings of the old law are inevitably high. But the ten years of debate has resulted in an Act that is layered with complexities – exemptions and partial exemptions (producing anomalies) and involving difficult areas of interpretation. Is this an inevitable consequence perhaps of the difficult balancing act struck between the various competing interests and the need to establish an offence fit for purpose – i.e. an offence that ensures that only the worst incidents of corporate failings result in a criminal charge? So six months on where are we?
The offence
The offence is committed where an individual's death is caused2 because the way the activities of the organised have been managed or organised by the senior management amount to a gross3 breach of a relevant duty of care4 to the deceased.
The Act is intended to apply to the worst instances of corporate failings – so the operation of the Act is restricted to only a sufficiently senior level of management (a collective term) so that it could properly be considered a "corporate" failure. This serves to ensure that the problems of identification and aggregation under the old law are overcome – no individual needs to be prosecuted (and in fact under this Act cannot be5) and the failures of several can now be aggregated and taken as a whole.
Although the offence is one of "corporate" manslaughter, the offence is not limited to incorporated bodies but includes unincorporated bodies too. So that in addition to incorporated bodies (companies, NHS Trusts and local authorities) police forces, government departments, partnerships and trade unions (these latter two, only if they are employers) are organisations which may be prosecuted under the Act6.
Section 1(4) defines senior management as those who play a "significant" role in making decisions about how the whole or a substantial part of the company's activities are to be managed or organised or who play a significant role in the actual management or organising of those activities. Who would be captured by this definition would depend entirely on the organisation itself, for example, in a large corporation with a multitude of divisions a regional manager might well qualify. However, this would depend on the overall size of the company, the number of divisions, the nature and number of the various tiers of management, the diversity of the organisation's activities and even the individual's own job description/specification.
What is interesting is that even though an individual cannot be prosecuted under the Act – the spotlight may still be on them as he/she might have to be identified within the case and his/her role in the organisation scrutinised in order for the prosecution to be able to show that, firstly, they qualify as senior management and, secondly, that their failings led to the death.
The issue of the relevant duty of care is dealt with under Section 2 of the Act. The Act does not create any new duties of care. It is important to note that even though a duty of care may be owed to a person in a myriad of ways – the duty of care under the Act i.e. the relevant duty of care, is deliberately and carefully articulated.
A duty is owed to employees7 and those working for or performing services for the organisation (this captures the situation where a self-employed person is killed whilst working on behalf of an organisation). A duty is also owed by occupiers of premises8 - on the basis that an occupier has to have regard for the health and safety of those in, passing through or even passing outside their premises (e.g. the gargoyle falling from the older building onto an unsuspecting passer-by). A further duty is also owed by those who might be affected by the organisation's activities generally9 - the supply of services, construction and maintenance, other commercial activity and machinery and vehicles.10
Exemptions
A public authority is excluded from owing a duty of care, for the purposes of the Act, in relation to decisions on matters of public policy, particularly in respect of the allocation of resources11. This is likely to give rise to some outcomes the public might regard as surprising. For example, how would a decision to provide a particular treatment – benefiting some, at the expense of others (who then die) compare to the decision not to allocate money for cleaning wards – resulting in the advance of the superbug, clostridium difficile?
The first would be classed as a decision on a matter of public policy and therefore would not attract a relevant duty of care, the second would be classed as the management of a budget and not fall within the exemption. In the latter example, the relevant duty of care would have already have been owed to patients (occupiers of premises and possibly the supply of services) i.e. the duty of care does not arise from the decision itself.
The Ministry of Defence is exempted for owing a duty of care to the armed forces when they come under attack or face resistance in relation to military operations/peacekeeping mission – and in relation to training for such operations12.
The duty of care ordinarily owed by the police and law enforcement agencies as employers or occupiers of premises is suspended when they are dealing with terrorism or when they, in any event, come under attack13. This would mean that a badly organised police response to, for example, violence at a football match which resulted in an officer's death would not attract liability under the Act. Nor do they owe a duty of care to members of the public when carrying out policing activities. Thus even if a member of the public is killed because of a grossly negligent act of a police force, no liability attaches under this Act.
A further exemption relates to the way in which the fire and ambulance services and the NHS respond to emergencies14, which causes other dichotomies in the application of the Act.
Even in relation to an emergency, a relevant duty of care is still owed to an employee – so if a member of the public and an employee died in the same set of circumstances a relevant duty would be owed to one and potentially not the other by virtue of the Act. A relevant duty of care to a patient would not be held to exist if the ambulance broke down on the way to an accident – having not been properly maintained – and somebody died at the scene. Likewise, if the ambulance did turn up (in time) and a decision was made to treat those with minor injuries as opposed to the individual with the severed artery – no relevant duty of care flows from that decision, as the order in which patients are treated is exempt under the Act. However, the exemption does not extend to the way in which medical treatment is carried out – and therefore the provision of unsuitable or ill-trained paramedics could potentially give rise to a relevant duty of care in connection with the supply of services15.
Gross breach
As indicated above, the Act was intended to deal only with the "worst instances of failure across an organisation to manage health and safety properly16". In order to pitch the offence at what they perceived to be the correct level, Parliament appears to have borrowed the wording from traffic law17for what would amount to a gross breach and imported the notion of a breach of duty which "falls far below what can reasonably be expected of the organisation in the circumstances."18
What the concept of "far below" might mean in the context of the Act is vague and in practice it remains to be seen how this will be interpreted. The question of whether there has been a gross breach of duty is a matter for the jury to decide. Section 8 of the Act sets out what factors the jury will consider in reaching their decision. The jury must consider whether the evidence shows that the organisation failed to comply with health and safety legislation, how serious that failure was and how much of a risk of death it posed. This implies that the jury will need to look at how much of a risk of death the failure to comply posed as opposed to the breach of duty – but is that correct? Since the Act does not assist with the phrase "how much of a risk of death it posed" – is it safe to assume this will be interpreted as "a serious and obvious risk of death"19?
Who could be relied upon to objectively assess the risk of death? Hindsight of course is a wonderful thing – but would not the fact that there has been a death rather skew any assessment after the event? Theoretically, of course, there might be some evidence relating to concerns expressed before the event and relayed to management. This would need to be carefully scrutinised to assess whether it was in fact made by an individual who could reasonably be expected to offer an objective evaluation of the risk posed (as opposed to the "scaremonger" who sees death around every corner).
The jury may then also consider whether their were ".....attitudes, policies, systems or accepted practices...... likely to have encouraged" the health and safety breach "....or produced tolerance of it"20. This has been paraphrased as "a management culture" which is accepting of failures relating to health and safety. What the section does not make clear is whether the prosecution have to prove that "senior management" were aware of this apparent culture or whether proving that they ought to have known would be sufficient.
The jury may then be permitted to consider "any other matters they consider relevant"21
Sentencing
The courts powers of sentencing, upon conviction, are the imposition of an unlimited fine, the imposition of a remedial order22 and the power to make a publicity order23– requiring the organisation to publicise the conviction.
The level of the fine has been the subject of consultation by the Sentencing Advisory Panel. The Panel has recommended fines within the range of 2.5%-10% of the organisation's turnover. The recommendation is that the provisional starting point should be at 5%, aggravated or mitigated as appropriate in the circumstances. The financial consequences for an organisation could therefore be staggering. In addition, compensation is always an issue for the criminal courts to consider, however, the Court may take the view that families of victims will be able to seek compensation in the civil courts, which are arguably better placed to properly assess the detail of a claim for damages.
However, the reputational consequences for an organisation are perhaps as, if not more, crushing than the immediate financial implications.
Conclusion
Whether the expectations about the Act can be met will obviously depend upon the way in which the Act is interpreted, applied, prosecuted and, if appropriate, sentenced.
To-date there has not been a prosecution. This does not mean that organisations are perfect when it comes to health and safety, that the police are unwilling to investigate or that the Crown Prosecution Service is not ready to prosecute an appropriate case. It is a reflection of the fact that it is early days.
What the outcome is when a case is brought remains to be seen – but it is perhaps important to reflect that as no individual can be convicted of corporate manslaughter, it is reasonable to assume that this omission is likely to still leave the bereaved with a certain degree of dissatisfaction which no level of fine or reputational dent will dissipate.
Footnotes
1 Corporate Manslaughter and Corporate Homicide Act 2007 (the Act)
2 The test for homicide will apply i.e. whether the act or omission was a more than minimal contribution to the death.
3 Section 1(4)(b) applying the test of "falls far below what can reasonably be expected"
4 The words "relevant duty of care" have a role in limiting the scope of the new offence.
5 Individuals may still be prosecuted for an offence manslaughter by gross negligence.
6 Section 1(2) and Schedule 1
7 Section 2(1)(a)
8 Section 2(1)(b)
9 Section 2(1)(c)
10 The provision relating to the duty of care owed to detained persons (section 2(1)(d) has not yet been brought into force – however, a relevant duty of care would still be owed to a detained person by virtue of the occupier of premises provision
11 Section 3 (1)
12 Section 4
13 Section 5
14 Section 6
15 Section 2(1)(b) & (c)(i)
16 Understanding the Corporate Manslaughter and Corporate Homicide Act 2007, Ministry of Justice Guidance (October 2007)
17 Under the Road Traffic Act 1991, Section 2, dangerous driving is driving which falls "far below what word be expected of a competent and careful driver..."
18 Section 1(4)(b)
19 R v Singh (Gurpal) 1999 CLR 582 approved in R v Misra Srivastava [2004] EWCA Crim 2375
20 Section 8(3)
21 Section 8(4)
22 Section 9
23 Section 10
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
