TRAFFORD COUNCIL

Report to: Executive Team Date: 10th March 2008 Report for: Discussion and Decision Report author: Corporate Director for Prosperity, Planning and Development Report Title

The Corporate Manslaughter & Corporate Homicide Act 2007 and Director’s Responsibilities in Leading Health and Safety at Work

Purpose of Report

The new Corporate Manslaughter Act comes into force on 6 April 2008 and creates a new statutory offence of corporate manslaughter. This report outlines the new offence, how the offence will be investigated and considered by the courts, the penalties and likely sentencing guidelines and finally considers the implications of the new offence for a local authority.

The report also emphasises the requirement for health and safety leadership, which is required to be demonstrated both collectively and individually by Senior Managers.

Recommendation(s)

1. That CMT set the direction for effective health and safety management and that Directorate Management Teams undertake a review of the arrangements in place within their services and if necessary set out an improvement strategy 2. That CMT ensure that a continued emphasis is placed upon the four point agenda, ensuring that health and safety continues to be properly planned, delivered, monitored and reviewed 3. That CMT, Directors and Senior Managers place a focus upon producing a culture of risk assessment and the implementation and monitoring of control measures 4. That CMT undertake a review of the organisational structure to determine who could be considered a “Senior Manager” within the Act and provide them with suitable training 5. That CMT ensure that a costed programme of mandatory health and safety training for all Council managers is developed, and that a costed programme of Health and Safety training for elected members is also developed. 6. That CMT confirm that funding arrangements are in place to deliver the agreed training programmes, and ensure that the training programmes are delivered in a timely fashion. 7. That the Insurance Section ensure that insurance cover includes legal protection in the event of criminal charges for corporate manslaughter 8. That an internal protocol be produced on dealing with a death at work 9. That the existing Council procedures for vetting and controlling driving at work be overhauled and a policy on driving at work produced 10.That service areas at higher risk of fatalities occurring due to the nature of their activities are identified, in order to ensure that robust systems are in place to manage risks in these areas 11.That CMT undertake a review of job titles and job descriptions within their areas, particularly of senior managers, regarding health and safety duties

Page 1 of 10 Contact person for access to background papers and further information:

Name: Josh Arnold Extension: 4919

Background Papers

The Institute of Directors (IOD) and Health and Safety Commission guide on “Leading Health and Safety at Work” Oct 07 Ministry of Justice “Guide to the Corporate Manslaughter and Homicide Act “ Oct 07 Report to the Corporate Management Team on 17th October 2007 “Legionella- Recommendations following Barrow Judgement”

1.0 Background

1.1 The Corporate Manslaughter & Corporate Homicide Act 2007

The new Corporate Manslaughter Act, which comes into force on 6 April 2008 and creates a new statutory offence of corporate manslaughter, will replace the existing common law offence of manslaughter by gross negligence, for organisations.

The key failing of this existing law was perceived to be the “identification principle”, under which it was necessary to identify and successfully prosecute an individual who was considered to be the “controlling or directing mind” of the organisation, before being able to find the organisation guilty of manslaughter.

This "controlling mind" doctrine has been removed. This is to be replaced by the “aggregation principle” and an organisation, including a public body such as a local authority, will be guilty of manslaughter if the way in which any of its activities are managed or organised by senior managers causes a persons death, which amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

The new offence is an organisational one, and complements existing accountabilities under which individuals can be prosecuted for manslaughter by gross negligence and also for health and safety offences, and is specifically linked to compliance with current health and safety requirements. It does not create a new individual liability, but rather addresses perceived failings with the law around corporate liability. It is thought that the new offence will make it easier to bring a prosecution against an organisation where gross failures in the management of health and safety lead to death.

1.2 The new offence

The new offence is no longer based upon the law of precedent (case law) but rather is replaced by a statutory test.

An organisation is guilty of the offence of Corporate Manslaughter if:

The way in which its activities are managed or organised by its senior managers:

 Causes a person’s death, and

 Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

Page 2 of 10 1.3 Definitions under the Act

Taking each of these aspects in turn:

“Managed or organised”

Juries will consider how the activity leading to the fatality was managed or organised throughout the organisation as a collective whole. To do so they will consider any systems or processes for managing safety and crucially how these were operated in practice. The management failure must have caused the death. Explanatory notes to the Act indicate that such a failure must be more than a minimal contribution, however, management failure does not have to be the sole cause of the death.

“Senior management”

The Act defines senior management as persons who “play significant roles” in the organisation in making decisions either about how the whole or a substantial part of its activities are to be managed or organised (such as Directors) or actually managing or organising the whole of a substantial part of those activities. In effect this means that the definition of senior manager extends both to those who make strategic decisions and those who have operational responsibility with a significant role in the setting and monitoring of workplace practices. The definitions of “significant” or “substantial” will be tested in Court.

According to the Ministry of Justice guide to the Act, this might include managers in central financial or strategic roles or managers of different operational divisions, but they note that it will depend on the nature and scale of an organisation’s activities. However the guide also notes that it will not be necessary for the prosecution to prove specific failings on the part of individual Senior Managers, but rather for the jury to consider that the senior management of the organisation collectively were not taking adequate care and that this was a substantial part of the organisation’s failure.

When considering whether an organisation is guilty of the offence of Corporate Manslaughter, by virtue of the way in which its activities are managed or organised by its senior managers, investigating authorities and juries may take into account the attitude, actions and inactions on the part of a wide range of managers.

“Duty of care”

The Act does not create a new duty of care but reflects the existing ones owed in the civil law of negligence. This includes duties owed as an employer and occupier of premises regarding the condition of the premises, in respect of systems of work and equipment, and also in relation to the provision of goods or services and construction work. It is probable that the duty of care is sufficiently wide to encompass most activities that a local authority will engage in.

“Gross Breach” and the role of the jury

The definition of a “gross breach” is that the conduct of the organisation must have fallen well below what could have reasonably been expected.

Under section 8 of the Act, Juries will have to take into account any health and safety breaches and how serious and dangerous these failings were. They will consider the

Page 3 of 10 attitudes, systems, policies and accepted practices within the organisation in order to ascertain how serious the failure was. They will also have regard to any relevant health and safety guidance such as statutory approved codes of practice and other guidance produced by the regulatory authorities, when considering the extent of any failures.

1.4 Investigation and prosecutions of work related deaths

Under the existing work related deaths protocol the Police are already likely to lead on the investigation of any work related fatalities. Current views are that this will almost always mean the Police will take the lead in investigating work related deaths as potential corporate manslaughter offences in future, using the Health and Safety Executive (HSE) as technical advisors.

It is believed that use of the new Act will be reserved for the most serious of cases with clear management failings and where profit is put before safety, although it is anticipated that there will be a rise in the number of successful prosecutions for corporate manslaughter, particularly of larger companies, as the offence will be easier to prove than the existing common law offence, and is more likely to be deliberated by juries.

Recent case law also makes it clear that the organisation will be held liable for the failure of its employees unless it can be proved that the individual deviated from established (and monitored) safe systems of work. However, it is currently considered that companies who get the basics right, i.e. have active commitment from the top, adequate resources dedicated to health and safety, competent advisors, and risk assessment and monitoring in place, will be unlikely to be prosecuted for the new offence.

1.5 Penalties for corporate manslaughter offences

As the offence is a corporate one, no custodial sentences will apply for the new offence. However, the penalties available include:

 Unlimited fines  Publicity orders (Autumn 08) i.e. an order requiring the organisation to publicise details of its failings  Remedial orders (Autumn 08) i.e. an order to carry out remedial measures

A prosecution for corporate manslaughter can run alongside charges under the Health and Safety at Work etc Act 1974. As fines under both are unlimited it may in practice be difficult to distinguish the point at which health and safety offences cross over into ones of corporate manslaughter.

1.6 Forthcoming sentencing guidelines

Whilst unlimited fines are a possibility, the courts usually have regard to sentencing guidelines when setting the level of penalty. Draft sentencing guidelines have been produced by the Sentencing Advisory Panel, which are currently out for consultation, and these indicate a “sea change” in terms of levels of likely fines proposed for both the new offence and also for general health and safety offences (linked to a death at work).

Page 4 of 10 The proposals are that the starting point for offences shall be as follows:

For the offence of Corporate Manslaughter

 A publicity order  A fine of 5 % of the average annual turnover (within a range of 2.5- 10% of average annual turnover)

For offences under Health and Safety at Work Act

 A fine of 2.5 % of the average annual turnover (within a range of 1- 7.5% of average annual turnover)

It is possible that non-profit making bodies will be looked at differently but will not go unpunished.

1.7 Individual offences and penalties

It is worth noting that HSE have also indicated an intention to make greater use of the existing offence under section 37 of the Health and Safety at Work etc Act (HASWA) to prosecute any director or manager whom is perceived to have “consented” to or “connived” in, or been responsible for any offence by virtue of their neglect. These offences also include unlimited fines and do include custodial sentences of up to 2 years. Recent case law indicates that it is not sufficient defence for a Director to claim that they were ignorant of the standards of health and safety management that were in place, but rather it is important what they ought to have known.

Existing powers to prosecute individual directors under gross negligence manslaughter remain in place, subject to a maximum of life imprisonment. There is already an increasing number of individuals being prosecuted for both manslaughter and under section 7 (relating to the duties of individual employees) and section 37 of HASWA, and views are that this is likely to accelerate after the introduction of the new Act.

There are also implications for any individuals who are investigated as part of any corporate manslaughter or HASWA offence, in terms of insurance cover provided to them to cover any legal costs which may arise.

2.0 Implications for a local authority

2.1 Barrow Council prosecution

The new Act increases the scope of manslaughter prosecutions to encompass local authorities. In the higher risk areas that local authorities operate, such as highways, housing, leisure and social care, deaths do inevitably occur from time to time.

The only prosecution of a local authority for manslaughter so far is that of Barrow in Furness Borough Council, in relation to the deaths of 7 people in the Legionalla outbreak of 2002. It is worth noting that in his closing remarks, the presiding judge made it clear that in failing to carry out risk assessments for Legionella, in failing to have adequate controls in place (i.e. not renewing the water treatment contract) and in not implementing HSE guidance, the failures of Barrow Council were so gross that

Page 5 of 10 had they been prosecuted under the new legislation, it is very likely they would have been convicted of corporate manslaughter.

This case illustrates the need for a culture of active health and safety management and a high level of awareness and control to exist from the top of the organisation, as many of these failings occurred at a fairly local level, i.e. within the Architect’s Department. It also illustrates that it is important to provide appropriate training to Senior Managers in order that they can be better aware of their responsibilities and exercise better control over the managers underneath them.

2.2 Higher risk local authority services

It will be particularly important for those services who carry out higher risk activities to ensure that they have robust systems in place. Higher risk activities include driving whilst at work, work on or near highways, work at height, and the management of Legionella, as all of these activities, if they go wrong, have higher potential to lead to deaths at work. In addition, there is also a need to consider those activities which present a higher level of risk to service users, such as bathing individuals and the provision of medication in social care, and possible falls from windows in social care/housing.

It is believed that driving whilst at work and fleet management will be one of the higher risk activities for all companies. Since road related deaths are common this is the most likely scenario in which a local authority will find itself the subject of an investigation for corporate manslaughter. If employers are found not to have carried out basic safety checks, including checks on documents where employees use their own vehicles, then they could be charged under the Act.

2.3 Implications for Trafford Council

A recent report to CMT on the implications of the Barrow public enquiry for Trafford Council outlined many of the improvements that the Council should make to its health and safety management, in addition to the recommendations made in this report. These included

 Continued integration of health and safety into management practice  Local health and safety policies to be reviewed for services and arrangements for specific premises more clearly defined  Better monitoring of health and safety within service areas  Introduction of a programme of audit of service’s arrangements for managing health and safety, by the Health and Safety Unit  Better reporting to Lead Officer and Member on Health and Safety  More formal reporting to elected members  Clarifying roles and responsibilities for Executive Members in relation to health and safety, and define and record the details in the corporate health and safety policy, as part of the next scheduled review of the policy (December 2008)  Encourage more worker involvement via Health and Safety Champions

Page 6 of 10  Review guidance and arrangements in place for managing contractors.

2.4 Legal implications

Exactly how this new legislation will be applied and interpreted will not be fully understood until cases start to be prosecuted in the Court. There are, however, some specific implications for local authorities in terms of how work related deaths are internally investigated and defended, as some legal experts in this area have expressed the view that it may not be appropriate for “in-house” solicitors to be involved in the investigation and defence of any subsequent prosecution as a conflict of interest may arise.

3.0 Leadership

3.1 Leading health and safety at work

The ethos of the new law is to emphasise the importance of compliance with existing health and safety law and guidance. The new offence is widely seen as providing an opportunity for employers to reconsider how risks are managed in their organisations and to ensure they are taking adequate proper steps to meet their current legal duties. As potential manslaughter charges will now be in the mind of the investigating authorities when dealing with fatalities, it is an opportune time for health and safety management systems to be scrutinised and overhauled.

With this in mind the Institute of Directors and the Health and Safety Executive have recently published joint guidance which they expressly state may be considered by a Jury as a relevant standard, entitled “Leading Health and Safety at Work”. This sets out an agenda for the effective leadership of health and safety, based upon essential principles which underpin the actions in the guidance to lead to good health and safety performance.

The main principles are:

 Strong and active leadership from the top  Worker involvement  Assessment and Review.

The four point agenda for embedding these essential principles, which consists of core actions and good practice for each point, consists of:

 Planning the direction for health and safety  Delivering health and safety  Monitoring health and safety  Reviewing health and safety.

In addition, the guidance includes a checklist for leaders to consider their own status as a leader on health and safety. The guidance states that health and safety must be led by the “Board” and that members of the Board have collective and individual responsibility for health and safety. It also recommends that the Board reviews its own performance on health and safety at least annually.

Page 7 of 10 4.0 Recommendations

4.1 Leadership

That CMT, in their capacity as a “Board”, undertake a review of the Council’s current health and safety culture and arrangements as per the “Leading Health and Safety at Work” guidance, and set the direction for effective health and safety management, in accordance with the essential principles within the guidance and following its suggested four point agenda.

In addition, bearing in mind the direction which CMT put in place, Directorate Management Teams collectively and, if necessary, Senior Managers individually, undertake a more detailed review of the arrangements in place within their services and set out an improvement strategy. It is also recommended that leaders ensure that a continued emphasis is placed upon the four point agenda, ensuring that health and safety continues to be properly planned, delivered, monitored and reviewed. In particular, that CMT, Directors and Senior Managers place a focus upon producing a culture of risk assessment and the implementation and monitoring of control measures.

4.2 Competence and training

It is also recommended that Corporate Directors undertake a review of the organisational structure within their areas to determine who could be considered a “Senior Manager” within the definition of the Act and provide them with suitable training, to ensure that they are competent in managing health and safety. It is also recommended that Corporate Directors ensure that a review is undertaken of job titles and job descriptions, particularly of senior managers, in relation to making their health and safety duties more explicit. This will also assist in the monitoring of the necessary competencies required at each level.

In order to further support the delivery of a more positive, proactive and robust health and safety culture it is also recommended that Directorates allocate sufficient funds within the revenue budget to provide a programme of mandatory health and safety training for all Council managers and that this training should include CMT’s “vision” for the direction of health and safety management within the Council. It is also recommended that Members be provided with training on Health and Safety responsibilities. The HSU can assist in the selection and procurement of suitable training providers and will consider any measures which can be taken in the interim period.

4.3 Specific recommendations

More specific recommendations include a review of insurance cover to ensure that it includes adequate legal protection in the event of criminal charges for corporate manslaughter, including cover for individual officers and elected members. The provision of an internal protocol on dealing with a death at work (involving Legal Services, the Health and Safety Unit, and the Communications and Emergency Planning Teams) would greatly assist in dealing effectively with the aftermath of any work related deaths.

It is also recommended that service areas at particularly higher risk of fatalities occurring due to the nature of their activities are identified, in order to ensure that

Page 8 of 10 robust systems are in place to manage risks in these areas and that these are adequately evidenced and in particular, that the existing Council procedures for vetting and controlling driving at work be overhauled and a policy on driving at work be produced.

Financial Impact: CMT have confirmed that funding arrangements will be in place to deliver a costed programme of mandatory health and safety training for all Council managers and Elected members.

Gershon Efficiency Savings None arising directly from this report Legal Impact The proposed recommendations will assist the Council in meeting its legal duties under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999. It will also reduce the likelihood of formal action and/or criminal prosecution under health and safety law or the corporate manslaughter legislation which carries the penalty of unlimited fines. There are also implications in terms of how work related deaths are investigated and defended. Human Resources Impact None arising directly from this report Asset Management Impact None arising directly from this report E-Government Impact None arising directly from this report Risk Management impact Implementing the recommendations will assist in reducing the risk of serious illness and injury amongst the Council’s staff and/or members of the public. It will consequently also reduce the risk of personal injury claims against the Council. Health and Safety Impact In addition to the comments in “legal impact” above these proposals will assist in the process of continuous improvement in health and safety management.

OTHER OPTIONS

The recommendations in this report have been put forward, based upon current views as to how the new legislation and the guidance on Director’s responsibilities should be utilised by employers to ensure that they are currently complying sufficiently with Health and Safety Legislation.

It is anticipated that the investigating authorities, such as the Police and the Health and Safety Executive, will consider the issues contained within the recommendations, as the basis for any decisions in relation to whether or not employers have been guilty of the offence of corporate manslaughter and how gross any breach may have been. Consequently it is recommended that the recommendations are implemented, as detailed in this report.

CONSULTATION

The Council’s Director of Legal and Democratic Services has been consulted regarding this report.

Page 9 of 10 REASONS FOR RECOMMENDATION

This report considers the implications arising from new Corporate Manslaughter Act and the associated guidance on Director’s Responsibilities in Leading Health and Safety at Work. The recommendations contained within this report aim to provide a framework for ensuring that the Council has robust systems, organisation and arrangements in place for managing health and safety, including engagement from elected Members, senior managers and all other relevant staff.

Finance Officer Clearance (type in initials)………JS……… Legal Officer Clearance (type in initials)…BD……………

CORPORATE DIRECTOR’S SIGNATURE (electronic)

To confirm that the Financial and Legal Implications have been considered and the Executive Member has cleared the report.

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