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

When will an Organisation be Convicted?

Key information

Corporate manslaughter/homicide will continue to be an extremely serious offence, reserved for the very worst cases of corporate mismanagement leading to death.

The offence is concerned with the way in which an organisation’s activities were managed or organised. Under this test, courts will look at management systems and practices across the organisation, and whether an adequate standard of care was applied to the fatal activity.

A substantial part of the failing must have occurred at a senior management level.

Juries will be required to consider the extent to which an organisation was in breach of health and safety requirements, and how serious those failings were. They will also be able to consider wider cultural issues within the organisation, such as attitudes or practices that tolerated health and safety breaches.

The threshold for the offence is gross negligence. The way in which activities were managed or organised must have fallen far below what could reasonably have been expected.

The failure to manage or organise activities properly must have caused the victim’s death.

Questions and answers

What will the courts look at under the new offence?

  • The offence is concerned with the way in which activities were managed or organised. This represents a new approach to establishing corporate liability for manslaughter/culpable homicide and does not require the prosecution to establish failure on the part of particular individuals or managers. It is instead concerned with how an activity was being managed and the adequacy of those arrangements.
  • This approach is not confined to a particular level of management within an organisation: the test considers how an activity was managed within the organisation as a whole. However, it will not be possible to convict an organisation unless a substantial part of the organisation’s failure lay at a senior management level.
  • Factors that might be considered will range from questions about the systems of work used by employees, their level of training and adequacy of equipment, to issues of immediate supervision and middle management, to questions about the organisation’s strategic approach to health and safety and its arrangements for risk assessing, monitoring and auditing its processes.
  • In doing so, the offence is concerned not just with formal systems for managing an activity within an organisation, but how in practice this was carried out. And in assessing whether an organisation’s arrangements were adequate, section 8 of the Act specifically allows a jury to consider evidence of broader attitudes within the organisation towards safety.

What standards are expected of organisations?

  • The offence does not require organisations to comply with new regulatory standards and creates an explicit link with existing requirements under health and safety law. Section 8 requires juries to consider, when assessing whether there has a gross breach of a relevant duty of care, the extent and seriousness of failures to comply with health and safety obligations, and the degree of danger this posed.
  • Juries may also have regard to any relevant health and safety guidance. This includes statutory Approved Codes of Practice and other guidance published by regulatory authorities that enforce health and safety legislation. Employers do not have to follow guidance and are free to take other action. But guidance from regulatory authorities may be helpful to a jury when considering the extent of any failures to comply with health and safety legislation and whether the organisation’s conduct has fallen far below what could reasonably have been expected.
  • Guidance on health and safety at work in England and Wales and Scotland is available from the Health and Safety Executive and in Northern Ireland from the Health and Safety Executive Northern Ireland, as well as from local authorities as appropriate.
  • However, HSE, HSENI and local authorities are not the only health and safety regulatory authorities. There are specific regulatory bodies, and in some cases separate legislation too, for certain sectors of industry (for example, in the various transport sectors: rail, marine, air and roads) and for dealing with particular safety issues (such as food and environmental safety). Further information about the standards that apply in these circumstances should be obtained from the relevant regulatory authority.

Who are an organisation’s senior management?

  • These are the people who make significant decisions about the organisation, or substantial parts of it. This includes both those carrying out headquarters functions (for example, central financial or strategic roles or with central responsibility for, for example, health and safety) as well as those in senior operational management roles.
  • Exactly who is a member of an organisation’s senior management will depend on the nature and scale of an organisation’s activities. Apart from directors and similar senior management positions, roles likely to be under consideration include regional managers in national organisations and the managers of different operational divisions.
  • The Act does not require the prosecution to prove specific failings on the part of individual senior managers. It will be sufficient for a jury to consider that the senior management of the organisation collectively were not taking adequate care, and this was a substantial part of the organisation’s failure.

Can the offence be avoided by senior management delegating responsibility for health and safety?

  • No. The Act is concerned with the way an activity was being managed or organised and will consider how responsibility was being discharged at different levels of the organisation. Failures by senior managers to manage health and safety adequately, including through inappropriate delegation of health and safety matters, will therefore leave organisations vulnerable to corporate manslaughter or corporate homicide charges.
  • This does not mean that responsibility for managing health and safety cannot be made a matter across the management chain. However, senior management will need to ensure that they have adequate processes for health and safety and risk management in place and are implementing these.
  • New guidance “Leading health and safety: leadership actions for directors and board members” is being drawn up jointly by the Health and Safety Commission and Institute of Directors and will be published UK–wide later this year.

How is the threshold for the offence changing?

  • The offence will continue to apply only in cases of gross negligence. The new offence makes it clear that the standard is whether the organisation’s conduct fell far below what could reasonably have been expected. This is intended to be broadly equivalent to the sort of threshold applied under the common law

Won’t the cause of death always be a more immediate, front line matter than failure to manage properly?

  • It will not be necessary for the management failure to have been the sole cause of death. The prosecution will, however need to show that “but for” the management failure (including the substantial element attributable to senior management), the death would not have occurred. The law does not, however, recognise very remote causes, and in some circumstances the existence of an intervening event may mean that the management failure is not considered to have caused the death.

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