CORPORATE MANSLAUGHTER AND CORPORATE HOMICIDE 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 procuring 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 corporations. 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 consent 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 element 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 evidence 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.