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The Corporate Manslaughter and Corporate Homicide Act 2007 - guidance

The Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008. This has significant implications for authorities whose actions at senior management level result in a death to someone to whom they owe a relevant duty of care. LGE has already provided guidance to Local Authorities. The Ministry of Justice has also published their guidance on the Act.  This can be found at http://www.justice.gov.uk/guidance/manslaughteractguidance.htm

1. What is Corporate Manslaughter?

Corporate Manslaughter is a new criminal offence that will replace the current common law offence. It enables a corporation to be convicted of corporate manslaughter when someone is killed as a result of the way the organisation is managed or organised and the failings by senior managers add up to a gross breach of the “relevant duty of care” owed to the deceased person.

2. When will this offence come into force and why has there been a change in the law?

It is likely that most provisions of the Act will come into force by April 2008. However, some parts are unlikely to come into force for sometime, these are the provisions relating to deaths in custody. Commencement will be by order of the Secretary of State.

There has been a change because under the current Common Law arrangements it is almost impossible to secure a conviction for Corporate Manslaughter of large complex organisations. There have been some high profile failures including the sinking of the Herald of Free Enterprise and the Hatfield train crash.

The problem is the identification principle. For the corporation to be found guilty of Corporate Manslaughter, an individual who is considered to be the “controlling or directing” mind of the company has also to be prosecuted for gross negligence individual manslaughter. In very large organisations it is difficult to make these charges stick, because it is almost impossible to prosecute an individual who is considered to be the “controlling or guiding mind” as they are so remote from the incident.

Therefore, it is only small organisations that have been successfully prosecuted as it is easier to identify the “guiding or controlling mind” as they are much closer to the circumstances that led to the death.

This new offence will therefore establish a level playing field across organisations whatever their size.

3. Are Local Authorities going to be subject for this new offence?

Yes, Local Authorities are clearly within scope as they are corporate bodies by virtue of s.2 Local Government Act 1972. They also owe a duty of care to employees as employers and to clients and services users as occupiers of land and suppliers of services. Therefore, their exposure is significant. Where there is a dispute as to whether a “relevant duty of care” is owed then the Judge will decide the point on the facts.

However, it is comforting that very few people, be they employees or clients or service users are killed each year. That is not to say that Local Authorities should be complacent and not take their duty of care very seriously. Each death is a tragedy and one is too many.

Under the new arrangements it is likely that there will be more Police investigations into work related deaths for possible Corporate Manslaughter charges. Even if charges are not brought, the investigation will be unsettling and many senior managers may find the experience uncomfortable. There may also be an expectation that where a charge of Corporate Manslaughter is not laid that health and safety charges will be. This may place greater pressure on the Health and Safety Executive.

It is likely that there will be more convictions as they will be easier to obtain.

4. Are there any activities carried out by Local Authorities that do not attract a duty of care?

Yes, the Act specifically refers to public policy decisions that do not carry with them a “relevant duty of care”. The specific example used is the “allocation of public resources or the weighting of competing public interests”.

Also undertaking statutory inspections do not carry with them a “relevant duty of care”.

There are additional exemptions in the provision of child protection and probation functions that are not considered to a “relevant duty of care”.

5. What is the difference between Corporate Manslaughter and offences under the Health and Safety at Work etc Act 1974?

Essentially, for Corporate Manslaughter to bite, a person to whom a duty of care is owed has to be killed and that death has to be due to management failures which amount to a gross breach of the “relevant duty of care”. Even if someone is very seriously injured and there are gross management failings a charge of Corporate Manslaughter cannot be brought because no one was killed.

In these circumstances inspectors from Health and Safety Executive would investigate and may prosecute under the Health and safety at Work etc Act 1974.  The fines for health and safety breaches can be unlimited in the Crown Court. Custodian sentences can also be imposed for failure to comply with notices.

Conversely, if a person is killed and the organisation has failed to comply fully with their duties under the Health and Safety at Work etc Act 1974, it does not automatically mean that there will be a charge of Corporate Manslaughter. This offence is reserved for the most serious breaches that lead to a death. That is not to say that the Police and Health and Safety Executive inspectors would not initiate a Corporate Manslaughter investigation under the death at work protocol.

6. The offence relates to senior management failures that led to a death, what does that mean?

The Act refers to senior managers as persons who play a significant role in

  • (a) making decisions about how the whole or a substantial part of its activities are to be managed or organised; or
  • (b) the actual managing or organising of the whole or a substantial part of those activities.

For Local Authorities this appears to suggest that senior managers would be the corporate management team who set in place the strategic agenda in terms of the organisations management and operational managers that are engaged in actually managing the authority’s activities.

Further, the definition of senior managers does not exclude elected members; they may therefore be considered senior managers within the authority. They must understand that they may become part of a Corporate Manslaughter investigation if a death occurs.

It has been suggested that senior managers can avoid liability for the organisation by delegating their role to junior managers. This is not practical as strategic decisions about how the organisation or substantial parts of it are managed or organised cannot be delegated.  This would paralyse the organisation. Further strategic managers, line managers and individual employees have health and safety responsibilities that cannot be delegated.

7. How and who will decide if the Local Authority has committed a gross breach of the duty of care owed?

A gross breach of the duty means falling far below what can reasonably be expected of the organisation in the circumstances.

In deciding what is a gross breach of the “relevant duty of care”, the Jury will consider amongst other things whether the organisation failed to comply with health and safety legislation, how serious any breach was and how much of a risk of death it posed. The Jury may also consider the prevailing culture within the organisation which may encourage failure or tolerance of it and failure to apply any health and safety guidance which may be relevant to the alleged breach.

8. What would it mean if a local authority is convicted for Corporate Manslaughter?

If any organisation is convicted then they will be subject to an unlimited fine. There have already been huge fines for private companies for offences under the Health and Safety at Work etc Act 1974. For example Transco were fined £15 million after an explosion which killed four people in their own home. Therefore, it is likely that fines imposed upon conviction for Corporate Manslaughter will be very high indeed.

However, Judges have been sympathetic when imposing sentence on local authorities for health and safety offences. Fines have been smaller than those imposed on private companies. This point was made by the judge in the Barrow legionnaires disease outbreak prosecution, who said and (I paraphrase) that the fine would have been much higher had they not been a local authority.

It makes little sense to impose a huge fine that essentially recycles public money back to the Treasury and away from local services.

However, upon conviction there will be significant image, reputation and political issues which will be explored by council tax payers and the local and national media. It is therefore better not to get convicted.

9. Can individuals be prosecuted for Corporate Manslaughter?

No, this offence can only be committed by organisations. There is no provision for secondary liability within the Act, therefore individuals cannot be prosecuted for aiding and abetting Corporate Manslaughter.

However, gross negligence individual manslaughter remains if the evidence is such to warrant such a charge.

In addition, sanctions against individuals may be considered such as prosecution by the Health and Safety Executive under Health and Safety legislation, and possible disciplinary action.

10. How does my Local Authority avoid conviction?

The simple answer is to ensure that no one is killed as a result of the way that you manage or organise your activities. Therefore, authorities should not be distracted from their primary aim of compliance with the Health and Safety at Work etc Act 1974.

There are a number of simple steps to take, these should not be expensive, this Act does not impose new duties, but introduces a new offence and you should therefore be doing the following already.

  • Ensure that there is strong and effective leadership on health and safety from the top of the organisation. Both Chief Executives and Senior Elected Members should recognise and fulfil their responsibilities under the Health and Safety at Work etc Act 1974 and follow the joint guidance of Institute of Directors and Health and Safety Commission. The guidance can be found at http://www.hse.gov.uk/leadership/
  • Ensure that the authority has in place an effective health and safety management system, see HSG 65, Successful Health and Safety Management.
  • As part of the management system, ensure that a robust health and safety policy is in place. Within that policy all health and safety roles and responsibilities should be articulated.
  • Job descriptions of staff should reflect their role in health and safety management, particularly at a senior level.
  • Reflect upon the competencies of existing senior managers with respect to health and safety management. Provide additional developmental opportunities to address any deficiencies.
  • Strategic managers should be trained to ensure they understand their role in the effective management of health and safety.
  • Line managers should receive training to enable them to manage health and safety within the part of the organisation for which they are responsible.
  • Elected members should receive training on their role and responsibilities within the health and safety system. This is particularly important for portfolio holders/cabinet members and chairs of scrutiny committees.
  • Ensure that health and safety performance is regularly considered at board level, to ensure adequate representation of these issues appoint a Director responsible for health and safety.
  • Mainstream health and safety into decision-making processes and ensure proper scrutiny of the health and safety implications of policy decisions.
  • Councils should ensure they have an action plan in place to enable a prompt and effective response in the event of a  death of someone to whom they have a relevant duty of care. An example of the plan is posted below. We are grateful to Barnsley MBC and Calderdale Council for their permission to share this document. Corporate Manslaughter and Corporate Homicide Act 2007: Management protocol and action guide (Word doc, 134KB)

In short, if the authority complies with its duties under the Health and Safety at Work etc Act 1974 and it should have little to fear from this new offence.

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