The Corporate Manslaughter and Corporate Homicide Act 2007 established a new statutory offence of corporate manslaughter (corporate culpable homicide in Scotland).
An organisation is guilty of the offence if the way in which it manages or organises its activities causes a death and amounts to a gross breach of a relevant duty of care to the deceased. A substantial part of the breach must have been in the way activities were managed by the senior management of the organisation.
The offence built on the responsibilities that employers and organisations already owed to their employees and members of the general public, with regard to the premises occupied and the activities carried out.
Before the introduction of the Act, an organisation could only be convicted of manslaughter if a ‘directing mind’ – i.e. a senior manager or director – was also personally liable. However, this did not reflect the reality of the way decisions are made in large organisations and there were very few prosecutions as a result. Under the Act, the offence is concerned with the corporate liability of the organisation itself, allowing this to be assessed on a wider basis and providing greater accountability for serious management failings across the organisation. It continues to be possible to bring prosecutions for gross negligence manslaughter against individuals, however, where there is sufficient evidence and it is in the public interest to do so.
When determining whether an organisation is guilty of the offence of corporate manslaughter, the 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 are required to consider the extent to which an organisation was in breach of its health and safety requirements and how serious those failings were. They are able to consider the culture that exists within an organisation regarding health and safety issues. Lax management attitudes that result in a lower standard of care than could reasonably be expected will be punished.
An organisation convicted of corporate manslaughter receive:
- an unlimited fine;
- a publicity order requiring the organisation to publicise its conviction and certain details of the offence; and
- a remedial order requiring the organisation to address the cause of the fatal injury.
Cases brought under the Act took a while to reach court, with the first prosecutions involving small companies. However, more recent cases, although few in number, show that that the courts take very seriously breaches of health and safety laws that lead to someone being killed.
A consultation paper published in July 2017 by the Sentencing Council for England and Wales ('Manslaughter Guideline Consultation') proposed that the current law on manslaughter committed by negligent employers should be beefed up, with longer potential terms of imprisonment in cases of 'gross negligence manslaughter'.
The Sentencing Council has now published 'Manslaughter – Definitive Guideline', setting out for the first time stet-by step guidance on how offenders convicted of gross negligence manslaughter should be sentenced in England and Wales. Judges are being advised to consider life in prison for the most serious culprits, with a recommendation they serve at least 18 years before being eligible for parole. The new rules come into force for sentences handed down from 1 November 2018.
The majority of those charged with the offence are likely to be employers, but grossly negligent medical practitioners can also be charged.
Employers are advised to keep their procedures under review, especially those with direct health and safety implications. Successful defences to charges of corporate manslaughter will inevitably depend on being able to prove that the organisation takes a responsible attitude to health and safety, with appropriate risk management procedures in place that are enforced rigorously.