Tuesday, January 15, 2008

Corporate manslaughter - homicide

I attended a very interesting talk today given by John Dyne from Dyne Solicitors

The Corporate Manslaughter and Corporate Homicide Act 2007 is due to come into force on 6 April 2008. It will mean that companies and organisations can be found guilty of corporate manslaughter if its activities are managed or organised by its senior managers in such a way that
1. causes a person’s death, and
2. amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

The offence will be Corporate Manslaughter in England, Wales and Northern Ireland and Corporate Homicide in Scotland.

It will lead to prosecutions of companies where gross deficiencies in management lead to fatalities. The penalties will include

1. Unlimited fines
2. Remedial orders - the court can tell the company how to improve systems etc. (this seems to overlap with HSE's remit to a certain extent)
3. Publicity orders - not entirely clear but it could require companies to advertise the fact they have been prosecuted. This may be in the paper or even posters at company sites.

John suggests that to avoid prosecution companies need to:
1. Determine where health and safety management responsibilities lie
2. Determine how responsibilities are delegated and monitored
3. Ensure all senior managers are in a position to control risks
4. Increase health and safety training for senior management
5. Review policies
6. Maintain constant review
7. Consult with employees and give them the opportunity to raise issues
8. Ensure they can demonstrate correct attitudes, policies and systems.

John made the point that an investigation would involved interviewing employees. They may say a lot of things about the company that management may not know themselves before the event. Management can no longer afford to keep their head in the sand as the defence of ignorance will not apply.

The introduction of the act will make organisations liable for Corporate Manslaughter if a fatality results from the way in which its activities are managed or organised. This approach is not confined to a particular level of management within an organisation. The test considers how an activity was managed within the organisation as a whole. However, it will not be possible to convict an organisation unless a substantial part of the organisation’s failure lay at a senior management level.
Corporate manslaughter will continue to be an extremely serious offence, reserved for the very worst cases of corporate mismanagement leading to death. The offence is concerned with the way in which an organisation’s activities were managed or organised. Under this test, courts will look at management systems and practices across the organisation, and whether an adequate standard of care was applied to the fatal activity. Juries will be required to consider the extent to which an organisation was in breach of health and safety requirements, and how serious those failings were. They will also be able to consider wider cultural issues within the organisation, such as attitudes or practices that tolerated health and safety breaches.

The threshold for the offence is gross negligence. The way in which activities were managed or organised must have fallen far below what could reasonably have been expected.

More information is available at the Ministry of Justice website

Andy Brazier

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