The Provisions of the Corporate Manslaughter and Corporate Homicide Act 2007 - Essay Example

Running Head: Corporate Manslaughter and Corporate Homicide Act 2007 Critically assess the provisions of the Corporate Manslaughter and Corporate Homicide Act 2007 [Name of the writer] [Name of the institution] Critically assess the provisions f the Corporate Manslaughter and Corporate Homicide Act 2007 After more than 10 years f delay, consultation and lobbying from campaigners, trade unions and industry, the Corporate Manslaughter and Corporate Homicide Act 2007 has finally entered the statute book. Its main provisions come into force on 6 April 2008. The war f attrition between the government and the House f Lords over whether the new law should apply to deaths in custody came close to killing it, but a last minute government U-turn means the act will now apply to prisoners' deaths. This provision will come in some time after the main enforcement date. The old corporate manslaughter law was universally condemned as wholly inadequate. Under the new law, which applies across the UK, an organisation will be guilty f corporate manslaughter (corporate homicide in Scotland) where a fatality was caused by a "gross breach" f a duty f care and the handling f the organisation's activities by senior management contributed substantially to the breach. A company's safety culture will be among the factors that a jury will have to consider. Those who have campaigned for directors and senior management to be held personally accountable will be disappointed. (Baker 2007, 22-22) The act does not apply to individuals, there are no prison sentences and the maximum penalty is an unlimited fine. Individuals can still be prosecuted for manslaughter under common law and the Health and Safety at Work Act 1974. The new law will make a considerable difference to employers' accountability for heath and safety. The most important change is that there will be convictions under this act, which prosecutors were unable to secure under previous law except in the case f a few small companies. The days f "no case to answer" submissions for high-profile corporate manslaughter cases are gone. Juries will convict, judges will impose significantly higher fines, and courts will be able to make a "publicity order" forcing guilty employers to publicise their offence and the penalty. The other main difference is that, from now on, almost every workplace fatality will lead to a corporate manslaughter investigation by the police and the Health and Safety Executive (HSE). Probably only a handful will result in a prosecution, but employers will face years f uncertainty and intrusive investigation focusing on the actions f senior management. So it's vital organisations have clear reporting lines and that managers have defined roles and responsibilities. The HSE recommends appointing a board-level health and safety director. Businesses should have up-to-date organisational charts and ensure job profiles and remits actually reflect the roles carried out. These should be reviewed after restructuring, acquisitions or disposals to ensure clear lines remain intact or have been created to cover all operations. If these kinds f details are absent, this will no doubt be drawn to the jury's attention by the prosecution. A corporate manslaughter investigation will also look for a "safety culture" in organisations. Employers should be able to show they have robust safety management systems that are reviewed regularly, and staff trained in the most relevant and up-to-date health and safety procedures. There should also be an open attitude to the raising f concerns. A clear whistle-blowing policy would demonstrate a transparent safety culture. Staff should be aware f the policy, those handling disclosures should be trained appropriately, and employee and manager health and safety training recorded on file. Even with exemplary policies, a corporate manslaughter criminal investigation will involve police scrutiny over a long period, possibly including arrest and interviews under caution. Staff may need support, legal representation, counselling and regular contact during any resulting ill-health absence. Internal enquiries should be postponed pending the conclusion f the criminal process. Key Points - Corporate manslaughter law has been reformed to make it easier to prosecute employers when fatalities occur at work. A death must be the result f a "gross breach" f an organisation's duty f care, involving mishandling by senior management, for the new act to apply. - Companies found guilty will face unlimited fines, and may be compelled to make the details f their conviction public. Individuals can still be prosecuted under the old laws. - Every workplace fatality is likely to lead to a police and HSE corporate manslaughter investigation. A good safety culture, whistle-blowing provisions, and board-level responsibility could provide evidence to show an employer was not guilty f a "gross breach." - Senior managers and staff under scrutiny from the police will need extra support. The Act comes into force on 6 April 2008. It will make it easier to hold an organisation to account if a fatality results from a significant failure on the part f that organisation. (Field 2007, 288-289) The scope f the Act is broad and it will apply to all companies operating in the UK. In some cases, it will apply to other bodies, including certain government departments, police forces, partnerships, trades unions and employers' associations. Current law An offence f corporate manslaughter was first proposed by the Law Commission following a series f incidents in which members f the public were killed. These included the fire at King's Cross underground station in 1987, the Piper Alpha oil platform disaster in 1988 and the Clapham rail crash, also in 1988. The companies involved were not held responsible for the deaths. The Commission was reacting to the significant public criticism that followed the failure to obtain successful prosecutions against these companies. When P&O European Ferries (Dover) was prosecuted following a ferry disaster off the UK coast, the application to companies f the common law offence f manslaughter by gross negligence was clarified. The court held that a company can be convicted f corporate manslaughter only if a director or company officer is: - guilty f manslaughter; and - identified as being the "controlling mind" f the company. There was insufficient evidence to convict the seven individual defendants who had been prosecuted. Thus, the prosecution against the company also had to fail, despite the 187 deaths. In 1996, the Commission recommended that an offence f "corporate killing" should be introduced; this would broadly correspond to the individual offence f killing by gross carelessness. Twelve years after this proposal was mooted, the Act implementing the recommendations will finally come into force. New offence Under the new Act, an organisation will be guilty f corporate manslaughter, or corporate homicide as it will be called in Scotland, if: - the way in which the organisation's activities are managed or organised: (i) causes a person's death; and (ii) amounts to a gross breach f the organisation's relevant duty f care to the deceased; and - senior management was substantially involved in an element f the breach. This differs from the current law because it does not rely upon the successful prosecution f an individual for manslaughter before a case against an organisation can succeed. When the Act comes into force, the present common law offence will be abolished. (Groch 2007, 25-25) The Act will apply if the death occurs in the UK, within UK territorial waters and on certain UK craft. It does not impose a limitation whereby the death must have been caused by a breach f health and safety or any other legislation. An offence will have been committed only if the organisation owed a "relevant duty f care" to the deceased. The relevant duties are those owed under the law f negligence. They include the duty: - to employees, other workers or service providers; - as an occupier f premises; - owed in connection with the supply f goods or services (for example, customers and passengers); - owed while carrying out construction or maintenance operations; or - owed in the undertaking f any commercial activity (for example, farming and mining activities). The organisation must also be shown to have committed a "gross breach", namely its alleged conduct fell far below what could reasonably have been expected f an organisation in the circumstances. In deciding whether a gross breach has been committed, the Act will require the jury to consider: whether the evidence can show that the organisation failed to comply with applicable health and safety legislation; how serious that failure was; and how big a risk the failure posed. There is also scope for the jury to consider other relevant matters. Finally, an offence will arise only if senior management had been substantially involved in the breach. The individuals comprising senior management will vary depending upon the nature f the organisation. However, it will generally include all those decision makers that play a major role in deciding how the organisation's activities are administered. Application f liability The Act specifically states that an individual cannot be guilty f aiding, abetting, counselling or procuring the commission f the offence f corporate manslaughter. However, individuals will still be held to account under the common law offence f gross negligence manslaughter. Individual liability under existing health and safety legislation will not be changed. The obligation to comply with health and safety law rests with the individual organisation. However, if a health and safety offence is committed with the "consent, connivance or neglect" f a director or senior officer, that individual may also be personally liable. If found guilty, he or she can face a fine and/or a term f imprisonment. There is no Crown immunity under the Act. Certain government departments are identified as owing the same duties f care as corporations: namely the Department for Transport, the Home Office, the Ministry f Defence, the Cabinet Office and the Department f Health. The public sector will owe relevant duties f care to employees and as an occupier f premises, but certain other governmental activities are excluded from the scope f the Act. This means that the Act will apply to some government department activities but not others. Any decision on the allocation f public resources or the formulation f public policy will be excluded from the scope f the Act. Certain operational and military activities are also excluded, including those dealing with terrorism, civil unrest or serious disorder. If an organisation is found guilty f corporate manslaughter, the court can order it to pay an unlimited fine and/or comply with a remedial or publicity order. Under a remedial order, the organisation will be required to take specified steps to remedy the breach and any health and safety deficiencies. One might expect that, after a fatality, most organisations would take such steps in any event. A publicity order could have a greater effect upon an organisation since this will require it to publish details f the offence, the fact that it was found guilty, the amount f the fine and what it must do under a remedial order. (McGowan 2007, 478-483) The Act does not alter the existing health and safety requirements. It provides that if joint proceedings are brought against an organisation both for corporate manslaughter and a health and safety breach, the jury may return a verdict on each charge. Thus, for the same incident, an organisation may face two sets f criminal charges and be required to pay two fines. Preparation for the new Act The Act is not intended to increase regulatory obligations. If an organisation complies with health and safety legislation then, broadly, nothing further will need to be done. Assuming that an organisation already has appropriate health and safety policies and procedures in place, the Act is unlikely to affect the daily management f UK bodies. (Leckie 2007, 20-20) However, if an organisation is concerned that its policies and procedures are inadequate, or if there have been any "near misses", it should consider taking action now. An independent health and safety audit would provide further information on the legislation and compliance. (White 2008, 210-210) The 2007 Act has had a long journey. Clearly, the police and the Health and Safety Commission will want to ensure that when the new law comes into force, it is used wherever necessary to bring organisations to account. Hopefully, the public sense f injustice at high-profile fatal accidents will become a thing f the past. A new test f liability In March 2005, the Home Office published a draft corporate manslaughter Bill. On 10 October 2006, the Corporate Manslaughter and Homicide Bill passed its second reading in the House f Commons and is now going through the committee stage. The proposed legislation aims to ensure that: "Companies and other organisations are held properly to account for gross failings by their senior management, which have fatal consequences." The new offence is intended to complement, and not replace, other forms f redress, such as prosecutions under health and safety legislation and civil claims. (Griffin 2007, 151-166) The proposals seek to tackle the principal difficulty that is experienced under the current law. This is the need to identify an individual who is personally guilty f gross negligence and who can be said to be the "directing mind" f a company. The bill is designed to deal with these difficulties by providing a new test f corporate liability for manslaughter, which focuses on management failures at a senior level within the organisation. Conduct covered by the bill The bill sets out proposals for a new, specific offence f corporate manslaughter. An organisation would commit the offence if a gross failing, on the part f its senior managers, to take reasonable care for the safety f its workers or members f the public caused a person's death. (Bourne 2007, 319-320) The new offence would apply when an organisation owes a duty f care in circumstances where it is: (i) acting as employer; (ii) acting as an occupier f land; (iii) supplying goods or services; (iv) constructing or maintaining buildings, infrastructure or vehicles; or (v) engaging in other commercial activities. The heart f the reform concerns instances f gross management failure that lead to death. A failure would be considered gross when, in the view f the jury, the conduct falls far below what can reasonably be expected f the organisation in the circumstances. This approach focuses on the arrangements and practices for carrying out the organisation's work, rather than on any immediate negligent act by an employee. In determining the issue f "gross failure", the bill provides a framework for assessing the organisation's conduct. This will require a jury to consider whether the corporation has failed to comply with relevant health and safety legislation and, if so, the seriousness f the failure and the resulting risk posed. The jury could also be asked to consider the company's attitudes and policies, and whether these were likely to have encouraged any failure to comply with health and safety legislation. In examining corporate systems, it would be necessary to consider the conduct f senior management collectively and individually. The aim would be to pinpoint the root cause f any management failure. The bill defines senior managers as those who play a significant role in an organisation in: - making decisions about how the whole or a substantial part f its activities are to be managed or organised; or - the actual managing or organising f the whole or a substantial part f those activities. This is an easier test to satisfy for the prosecution than establishing the existence f a "directing mind" under the current law. (Samuels 2007, 72-9; Leckie 2007, 19-19) An important element f the new offence is the requirement that the management failure must have caused the victim's death, namely there must be a causal link between the failure and the fatality. The management failure would have to have made more than a minimal contribution to the death and an intervening event must not have broken the chain f events linking the management failure to that death. If convicted, an organisation would be liable to pay, which would not be subject to a statutory limit. The bill also includes powers for the court to order convicted companies to take action to remedy the breach f the duty f care owed or any other matter that appears to have resulted in the fatal breach. Any failure to comply with a remedial order would constitute a further criminal offence also punishable by an unlimited fine. References Baker, James., Net Closes On Corporate Killing. People Management, 3/8/2007, Vol. 13 Issue 5, p22-22 Bourne, Nicholas., Corporate Manslaughter and Corporate Homicide -- At Last the Act. Business Law Review, Dec2007, Vol. 28 Issue 12, p319-320 Field, Duncan; Peters, Emily., Held to account. Estates Gazette, 10/20/2007 Issue 743, p288-289 Griffin, Stephen., Corporate Manslaughter: A Radical Reform Journal f Criminal Law, Apr2007, Vol. 71 Issue 2, p151-166 Groch, Steffan., Untitled. Contract Journal, 8/15/2007, Vol. 439 Issue 6638, p25-25 Leckie, David., Bad press is biggest deterrent in 'kill' Bill. Personnel Today, 6/5/2007, p19-19 Leckie, David; Fraser, Jane., Stay On The Safe Side f New Law. People Management, 8/9/2007, Vol. 13 Issue 16, p20-20 McGowan, Laura., Criminal Law Legislation Update. Journal f Criminal Law, Dec2007, Vol. 71 Issue 6, p478-483 Samuels, A., The Corporate Manslaughter and Corporate Homicide Act 2007: how will it affect the medical world (eng), The Medico-Legal Journal [Med Leg J], 2007; Vol. 75 (Pt 2), pp. 72-9 White, S. M., Corporate manslaughter. Anaesthesia, Feb2008, Vol. 63 Issue 2, p210-210 Read More