Corporate manslaughter: the issues
The new law will be controversial as fresh from an election victory, the Labour government is widely expected to introduce a corporate manslaughter bill.
The government has invited consultation and comment on a proposed bill by 17 June 2005.
The present law
Under English law, there are two general homicide offences:
· murder
· manslaughter
If someone kills without intending to cause death or serious injury, but was blameworthy in some other way, then this is often referred to as involuntary manslaughter.
Within the various categories of manslaughter, there is also the concept of gross negligence manslaughter. According to the Crown Prosecution Service, it has to be established that:
· there was a duty of care owed by the accused to the deceased
· there was a breach of the duty of care by the accused
· the death of the deceased was caused by the breach of the duty of care by the accused
· the breach of the duty of care by the accused was so great as to be characterised as gross negligence and therefore a crime
However, the problem lies in that for a company to be prosecuted for manslaughter, including gross negligence manslaughter, it is necessary to identify a "controlling mind" who is also personally guilty of manslaughter.
It is not possible under the present law to add up the negligence of several individuals to show the company as grossly negligent. A specific individual has to be identified as a controlling mind for corporate manslaughter to be proven.
The Government's Proposals
After nearly five years of talking about it, the Home Office this spring finally published a document entitled "Corporate Manslaughter: The Government's Draft Bill for Reform".
The law will affect companies supplying services, as well as employers and occupiers of land, which will include premises and building sites
Under the proposed legislation, an organisation is guilty of the offence of corporate manslaughter if the way in which any of the organisation's activities are managed or organised by the senior managers a) causes a person's death; and b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
A person is a "senior manager" of an organisation if he plays a significant role in the making of decisions about how the whole or a substantial part of its activities is to be managed or organised; or the actual manager or organiser of the whole or a substantial part of those activities.
A gross breach is a breach of a duty of care by an organisation that falls far below what can reasonably be expected of the organisation in the circumstances.
To decide that question, the jury must consider whether the evidence shows that the organisation failed to comply with any relevant health and safety legislation or guidance.
The Draft Bill does set out a number of other factors which the jury will also have to consider, such as whether or not senior managers sought to cause the organisation to profit from its failure, ie that they deliberately cut corners to reduce costs or boost profits.
Critics of the proposed legislation are already concerned that such additional factors will make obtaining a conviction difficult.
The law will affect companies supplying services, as well as employers and occupiers of land, which will include premises and building sites.
So, do we actually need a Corporate Manslaughter Law?
Those in favour of further legislation argue:
1. There have been a number of accidents, in the transport sector and in the workplace, which have provoked demands for the use of the law of manslaughter. However failures to successfully prosecute corporations have led to a perception that the law is inadequate. There is a further public perception that the leaders of major corporations should be made personally liable for the failings of that organisation.
2. It would also address the overwhelming public concern expressed over the leniency shown to workplace deaths compared to other forms of homicide occurring outside the workplace.
3. From a practical point of view one can argue that the law must be made to fit the modern commercial environment so that it is much more straightforward to bring corporations to account for their actions. It will also improve safety standards across a wide range of organisations and afford workers and the public at large better protection
4. There are then the moral issues. There are those who argue that society is entitled to seek retribution on behalf of the relatives of those who have died, either in accidents or at work, by making corporations and their leaders more accountable under the law of manslaughter as well as under the health and safety legislation. Furthermore, a corporate manslaughter law will provide the required deterrent.
Those opposed to further legislation argue:
1. That in the work context, Britain has one of the best safety records in the world. It also has one of the poorest rehabilitation rates. Time, energy and resources would be better spent improving the rehabilitation of those hurt and producing better "no fault" compensation schemes.
2. A corporate manslaughter law will not be properly effective unless it targets the activities of individuals. The drafting and framing of this law has already proved extremely difficult but specifically excludes the acts of individuals. Unless the business leaders can be prosecuted, what is the guarantee that the proposed legislation will successfully target the guilty?
3. What does this bill add by way of penalties? The Health & Safety at Work Legislation gives the Heath & Safety Executive wide powers and the law provides for unlimited fines. Stiff fines are the most effective deterrent or sanction when used against corporations and the proposed sanctions under the Corporate Manslaughter bill add little to the present regulatory framework.
4. The effort in bringing this law into effect is taking up too much time. There are too many regulations already; more money spent on frontline regulatory activity would produce far better results. The resource presently being utilised, if instead directed to the Health & Safety Executive, an already effective regulatory organisation, would be given a far greater reach.
5. Over-regulation is gradually making the more hazardous business activities (demolition etc) uninsurable and, as a result, costs will greatly increase.
6. It is questionable whether retribution for its own sake is desirable or likely to produce a safer society.
7. At this point in time there seems to be too little real consensus between industry, the unions and interested pressure groups about how the proposed legislation should look, or indeed, whether it should be introduced at all.
Continuity Forum Comment
As can be seen there is still some distance to go in the debate concerning ‘Corporate Manslaughter’, but one thing is clear the government is committed to correcting what many see as an injustice within the Legal System whereby there are few penalties imposed upon companies whose actions (or inaction) may have contributed to a death.
We have little doubt that whilst many in Business will oppose these proposals, many others will welcome them and see them as a major step forward in aligning those with responsibility for safety within the organisation, particularly at senior level with the outcomes of the measures in place to protect the Business, its staff and stakeholders.
Taken with other measures we are clearly seeing a steady increase in the level of accountability executives have for the Business and the way it is operated, as well as a tightening of related Regulation and Legislation.
This particular development though is yet another powerful driver for Business Continuity Management whereby the organisation management can specifically benefit from embedding effective programmes within its operations with the BCM process easily demonstrating the steps taken to protect workers and stakeholders as well as illustrating the regular review of risks and the measures in place to mitigate them.
We have had discussions with a number of Barristers and almost all felt that Business Continuity Management had an important role to play to improve both the liability and consequences of a death in the workplace. A few pointed out that just by being able to point to an effective and properly constructed BCM plan would go some considerable way to demonstrating that an organisation and its management took a proactive and positive approach to Risk Minimisation and others added that all BCM programmes should recognise the potential cost of the proposed litigation in Human and Financial terms. The legal recommendation given was that all Boards should treat this legislation very seriously and urgently consider the full adoption of a complete BCM programme within their organisations, one which specifically includes the issues raised by the proposed government legislation and the addresses the potential effect of personal and individual liability on Senior Executives.
Our view is that the government will use this proposed legislation vigorously and that in the future organisations WILL be held to account against a far higher standard and that means that the ‘executive’ will need to review the current situation very careful to ensure that both they and their personnel are full protected.
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