Corporate Manslaughter - Health and Safety (Offences ) Act 2008

[ando]

I am sure that I cannot be the only person confused by the mixed messages regarding the
Corporate Manslaughter and Health and Safety (Offences) legislation, where it appears employers are being told that the new legislation makes it easier for them to be prosecuted for breaches of Health and Safety.

It is my understanding that the Corporate Manslaughter and Corporate Homicide Act focuses on companies rather than individuals and that the Health and Safety (Offences)Act gives the lower Courts more powers.

Where does it say in any of these that it makes prosecutions easier?

Over to you.

[Probie]

Good Morning.

The Corporate Manslaughter and Homicide Act does not actually expressly state it is easier to prosecute individuals, obviously, however it provides a broad spectrum within the Act for what is consider a 'body corporate' and can breach the level of duty of care required to prosecute in this area.

'Section 1, Sch 1 provide that a specified organisation is guilty of the offence of corporate manslaughter if the way in which its activities are managed or organised causes a person's death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased, and provides that an organisation that is guilty of corporate manslaughter is liable on conviction on indictment to a fine. The organisations to which s 1 applies are corporations, the government bodies and other bodies listed in Sch 1, police forces, and partnerships, trade unions and employer's associations, that are employers'. - Halsbury's Laws of England.

'In assessing whether an organisation's breach of a relevant duty of care was gross, the jury is required to consider whether the organisation failed to comply with relevant health and safety legislation, the seriousness of such a failure, how much of a risk of death it posed, and the wider context of the failure: Corporate Manslaughter and Corporate Homicide Act 2007 s 8. A court has the power to order an organisation convicted of corporate manslaughter to take steps to remedy the breach, any matters which resulted from that breach and any deficiency as regards health and safety matters in the organisation's policies, systems or practices: s 9. A court may order an organisation convicted of corporate manslaughter to publicise the fact of its conviction, specified particulars of the offence, the amount of any fine imposed and the terms of any remedial order made'

'The fact that an organisation is charged with or has been convicted of corporate manslaughter does not preclude a further charge of a health and safety offence which arises out of the same set of circumstances'

'The Secretary of State may extend the categories of organisation to which the offence of corporate manslaughter applies and may amend the list of government and other bodies. The Secretary of State may extend the categories of person to whom a 'relevant duty of care' is owed'

- Halsburys Laws of England -

As can be seen above a wide scope is provided, with regards to the conviction and prosecution of individuals under the heading body corporate I shall research into this. It will be interesting to know if individuals think this new legislation s a positive move or a start to 'defensive practices'.
 

[ando]

Thanks for that Probie
Am I correct in thinking that under the old common law an organisation could only be prosecuted if there is a ’controlling mind’ , ie somebody who is in charge and can take the wrap. In large organisations such the Herald of Free Enterprise, case nobody in the senior levels of Townsend-Thoresen could be described as ‘in charge’ and so the company could not be prosecuted. By contrast, if the company was a small one-man band, it was easy to get at the company, because it was obvious who was in charge. This was seen as unfair as it meant if you were big enough, the company could get away with it and the small businesses got clobbered.
Under the new act their must be a failure in the way in which an organisation’s activities are managed or organised by its senior management, which amount to a gross breach of a relevant duty of care, and cause a person’s death. Therefore there is no need to pin the blame on an individual, senior management as a whole being at fault, so it should be easier to prosecute large organisations.
In terms of the new legislation
1.   Despite what some people say the act creates no new duties as the relevant duties of care are the existing ones, so if a company run a good H&S system already then it should be ok, but if it has poor systems the punishment if they lead to a death might be more severe.
2.   The act only effects organisations eg companies and government departments not individuals. Individuals, if they could be held responsible could still be prosecuted under the old common law for manslaughter.
And hat all this means in practice is hard to say. We have one case going through the courts but it seems to involve a one-man band type operation. What need is a case involving a large company, where can find out what words like ‘senior management’ really mean.

Cheers
Ando

[Probie]

Ando,

I believe you to be correct in your following statements above, the way the new act works, or so it appears in my interpretation, is that it targets the 'body corporate' thus the company itself. However, it does mention that this does not absolve the company of prosecution under any other H&S law which can target individuals for breach.

My impression is that it still does not change the level of the duty of care, however the new act makes the duty of care a prominent feature in H&S legislation. With regards to the old common law again I believe it to be so that manslaughter is still an option, again as you do not have to fulfill the intent (mens rea) requirement. Sole bodies are briefly mentioned in the new legislation as to their position, but I understand your logic in the fact that a controlling mind is easier to prove than a large corporate group with shadow directors, limited liability and separate corporate personality.

There is indeed one prominent case going through at the moment which is the first case to go under this new legislation, I shall be keeping tabs on it, it has been closely followed by the times. A large firm going through this legislation would make for interesting law but would also mean a serious accident would have to have happened, I would much rather a common sense re-draft and clarification as would all of us.

Hope this answers a few questions. It is certainly on ongoing area that is still very new within legal jurisdictions.

[Boris]

Corporate Manslaughter allows the prosecution of a body corporate - a "thing" with a seperate legal personality to its Directors.  The body corporate can be fined for Corporate Manslaughter.  Just money.  What has not changes is the law relating to "Gross Negligence Manslaughter" - and if not held directly responsible, you can stand second defendant if you did aid, abet, cause, permit, counsel, procure or incite - the offence that lead to the death.  Corporate M/S is a pointless piece of legisaltion that affects bank balances only.