Corporate Manslaughter and Corporate Homicide Act 2007 – A Guide

A detailed look at what the changes to this law will mean for businesses

Corporate Manslaughter and Corporate Homicide Act 2007 – A Guide

What is the Scope of the New Offence?

Key information

The new offence builds on the responsibilities that employers and organisations already owe to their employees, in respect of the premises they occupy and for the activities that they carry out.

For the new offence to apply, the organisation concerned must have owed a “relevant duty of care” to the victim. This term is explained further below. The offence itself occurs where an organisation is in gross breach of a relevant duty because of the way its activities were managed and organised and this causes a death.

The Act sets out a number of exemptions covering deaths connected with certain public and government functions. The management of these functions involves wider questions of public policy and is already subject to other forms of accountability. Areas in which exemptions apply include military operations, policing, emergency response, child protection work and probation. A fuller description of the exemptions is also below.

The new offence will apply to the management of custody, but this part of the Act will not come into force on 6 April 2008. The Government is working to commence this within 3 to 5 years.

Owing a relevant duty of care

A duty of care is an obligation that an organisation has to take reasonable steps to protect a person’s safety. These duties exist, for example, in respect of the systems of work and equipment used by employees, the condition of worksites and other premises occupied by an organisation and in relation to products or services supplied to customers. The Act does not create new duties – they are already owed in the civil law of negligence and the new offence is based on these.

The duty must be a relevant one for the offence. Relevant duties are set out in section 2 of the Act and include:

  • Employer and occupier duties.
  • Duties connected to:
    • Supplying goods and services
    • Commercial activities
    • Construction and maintenance work
    • Using or keeping plant, vehicles or other things.
  • Duties relating to holding a person in custody.

Are statutory duties owed under health and safety law “relevant” duties for the new offence?

  • No – only a duty of care owed in the law of negligence will be a relevant duty of care (see section 2(1)). In practice, there is a significant overlap between these types of duty. For example, employers have a responsibility for the safety of their employees under the law of negligence and under health and safety law (see for example article 4 of the Health and Safety at Work (Northern Ireland) Order 1978). Similarly, both statutory duties and common law duties will be owed to members of the public affected by the conduct of an organisation’s activities.
  • The common law offence of gross negligence manslaughter in England and Wales and Northern Ireland is based on the duty of care in the law of negligence, and this has been carried forward to the new offence. In Scotland, the concepts of negligence and duty of care are familiar from the civil law.

Who will decide if a duty of care is owed?

  • The Act requires the judge to decide if a duty of care is owed – section 2(5).

What about circumstances where a person cannot be sued in negligence?

  • In certain circumstances, a person cannot be sued under the civil law of negligence. Nevertheless, the new offence may still apply. This will be the case, for example, where a statute has replaced liability under the law of negligence with a “no fault” scheme for damages. The new offence will also apply where an organisation is engaged jointly in unlawful conduct with another person (for example, in cases of illegal employment) and where a person has voluntarily accepted the risks involved. This is set out in sections 2(4) and 2(6).

Exemptions

Sections 3–7 of the Act set out specific exemptions. These mean that the offence will not apply to deaths that are connected with the management of particular activities. They fall into two broad types:

Comprehensive exemptions:

Where a comprehensive exemption exists, the new offence does not apply in respect of any relevant duty of care that an organisation owes. These apply to:

  • Public policy decisions (section 3(1)). This covers, for example, strategic funding decisions and other matters involving competing public interests. But it does not exempt decisions about how resources were managed.
  • Military combat operations, including potentially violent peacekeeping operations and dealing with terrorism and violent disorder. Related support and preparatory activities and hazardous training are also exempt. This is set out in section 4.
  • Police operations dealing with terrorism and violent disorder. This also extends to support and preparatory activities and hazardous training. This is set out in sections 5(1) and 5(2).

Partial exemptions:

In these circumstances, the new offence does not apply unless the death relates to the organisation’s responsibility as employer (or to others working for the organisation) or as an occupier of premises. These include:

  • Policing and law enforcement activities¹ (section 5(2)).
  • The emergency response of:
    • fire authorities and other emergency response organisations;
    • NHS trusts (including ambulance trusts) – this does not exempt duties of care relating to medical treatment in an emergency, other than triage decisions (determining the order in which injured people are treated);
    • the Coastguard, Royal National Lifeboat Institution and other rescue bodies; the armed forces.
  • Carrying out statutory inspection work (section 3(3)), child–protection functions or probation activities (section 7).
  • The exercise of “exclusively public functions” (section 3(2)). This covers:
    • functions carried out by the Government using prerogative powers, such as acting in a civil emergency; and
    • functions that, by their nature, require statutory (or prerogative) authority. This does not exempt an activity simply because statute provides an organisation with the power to carry it out (as is the case, for example, with legislation relating to NHS bodies and local authorities). Nor does it exempt an activity because it requires a licence (such as selling alcohol). Rather, the activity must be of a sort that cannot be independently performed by a private body. The type of activity involved must intrinsically require statutory or prerogative authority, such as licensing drugs or conducting international diplomacy.

Further information can be found in the Explanatory Notes to the Act.

What is the position of private companies carrying out exempt functions?

  • Private companies that carry out public functions are broadly in the same position as public bodies. A number of exemptions are written in a general way, to exclude a particular activity regardless of what sort of organisation is carrying it out. In other cases, an exemption applies to all public authorities. This will include private organisations that exercise public functions. In some instances, the Act makes specific provision for organisations in both the public and private sectors. Overall, the Act is intended to ensure a broadly level playing field under the new offence for public and private sector bodies when they are in a comparable situation.
¹ Where the comprehensive exemption described above does not apply.

© Crown Copyright

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