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CORPORATE AND CORPORATE ACT 2007

“A NEW DAWN FOR CORPORATE RESPONSIBLITY?

OR A WASTE OF EVERYONE’S TIME?”

Introduction and Commencement

1. The Corporate Manslaughter and Corporate Homicide Act 2007 received royal

assent on 26 July 2007 and the majority of its provisions came into force on 6

April 2008. The Act will have effect for any deaths that occur after 6 April 2008.

The Act relates only to corporate bodies and it does not envisage or allow for any

individual to be prosecuted under the Act for any substantive offence or for

aiding, abetting, counselling or the commission of an offence under the

Act.

2. Section 20 of the Act abolishes the common law offence of manslaughter by gross

negligence with respect to . Individuals will remain liable to

prosecution under the common law offence of gross negligence manslaughter;

with the concomitant difficulties that that offence carries with it.

3. The Act is wide ranging. There is no Crown immunity to the Act and it covers in

addition to companies: police forces, partnerships, trade unions, employers’

associations, Department for Communities and Local Government, Crown

Prosecution Service etc.1

1 See Schedule 1 of Corporate Manslaughter and Corporate Homicide Act 2007 for complete list of all parties to whom the Act applies. Route to Conviction

4. A prosecution under the Act cannot be instituted without the of the

Director of Public Prosecutions. Offences under the Act are triable only upon

indictment.

5. For a successful prosecution to be brought, the Prosecution must first be able to

prove that the defendant organisation owed a “relevant duty of care” to the victim

or victims. This is a question of law and as such is to be determined by the judge

and not the jury. Any finding of fact that is required in order for the question of

law to be determined is similarly a matter for the judge and not for the jury.2

6. When determining the question of the existence of a relevant duty of care, the law

of negligence is to be relied upon. The relevant duties in negligence include the

duty owed to employees or contractors; the duty owed as an occupier of premises;

the duty owed in connection with the supply of goods and services; the duty owed

in connection with any construction or maintenance operations; the keeping of

plant, vehicles or other machinery.3

7. If a relevant duty of care is established, the next stage for a successful prosecution

is to prove a gross breach of the duty in the way in which the Defendant managed

or organised its activities. It is necessary to show that the way in which the

organisation’s activities were managed or organised by a senior manager was a

substantial of the breach.

8. A “gross” breach is one where the conduct of the Defendant is a breach of duty

that falls far below what could reasonably be expected of the organisation in the

2 Section 2(5) Corporate Manslaughter and Corporate Homicide Act 2007. 3 Section 2(1) Corporate Manslaughter and Corporate Homicide Act 2007. circumstances. The jury will apply this test and will be required to consider

whether the shows that the organisation failed to comply with any health

and safety legislation that relates to the alleged breach. They must also take into

account how serious such a failure was and how much of a risk of death it posed.

They may (as opposed to must) consider the extent to which the evidence shows

that there were attitudes, policies, systems or accepted practices within the

organisation that were likely to have encouraged any such failure to comply with

the health and safety legislation or to have reduced tolerance of it. They may (as

opposed to must) have regard to any health and safety guidance that relates to the

alleged breach. Guidance means any code, guidance, manual or similar

publication that is concerned with health and safety matters and is made or issued

by and authority responsible for the enforcement of health and safety legislation.

9. When determining the involvement or otherwise of senior management, the court

is to be concerned with persons who play significant roles in the making of

decisions about how the whole or a substantial part of the organisation’s activities

are to be managed or organised or in the actual managing or organising of the

whole or a substantial part of those activities.

10. Finally, it is necessary to show that the gross breaches were causative of the

death. It would appear (there is nothing in the Act to state to the contrary) that the

causative test is that which applied in common law.

Post conviction

11. The Act provides for punishment upon conviction by fine alone, along with

certain ancillary orders. Any fine upon conviction is unlimited.

12. The Court can make a remedial order upon conviction. The purpose of this order

is to require the convicted organisation to take specified steps to remedy: (a) the

relevant breach; (b) any matter that appears to the court to have resulted from the

relevant breach and to have been a cause of the death; and (c) any deficiency in

the organisation’s policies, systems or practices of which the relevant breach

appeared to the court to be an indication. Such a remedial order can only be made

following an application by the prosecution, setting out the terms of the proposed

order. The order must specify the amount of time available to carry out the

remedial work, and failure to comply with the terms of the order constitutes an

offence in its own right.4

4 Section 9(1) Corporate Manslaughter and Corporate Homicide Act 2007.

13. The Court can also make a publicity order upon conviction. The publicity order

requires the organisation to publicise in a specified manner the fact or the

conviction along with the particulars of the offence, the amount of the fine

imposed and the terms of any remedial order. Again, as with remedial orders the

Court will hear representations from both sides as to the terms of the order, if any,

to be made. As in the case of remedial orders failure to comply with the terms of

the order constitutes an offence.5

Michael Hayton Deans Court Chambers,

November 08 24, St John Street,

[email protected] Manchester. M3 4DF.

5 Section 10 Corporate Manslaughter and Corporate Homicide Act 2007.