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GUIDANCE ON THE
CORPORATE MANSLAUGHTER
AND CORPORATE HOMICIDE ACT 2007
April 2008
1
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Background
Summary of the Act: Conditions for a prosecution
Assessment of the Act
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20
Chapter 4:
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Chapter 5:
Chapter 6:
Chapter 7:
Chapter 8:
Chapter 9:
Chapter 10:
Chapter 11:
Chapter 12:
Chapter 13:
Chapter 14:
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Chapter 15:
Chapter 16:
Chapter 17:
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Investigation
Prosecution
Sentencing
Annexes
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Chapter 1:
Background
Boxes:
- Common law and statutory offences
- The Identification doctrine
- Law Commissions Corporate Killing offence
- Scotland and the reform process
- Key differences between the new and old offences
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Chapter 2:
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Chapter 3:
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Chapter 5:
Chapter 6:
Chapter 7:
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Boxes:
- Commencement of Act: relevant sections
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Boxes:
- Individual culpability?
- What is a Crown body?
- Organisations: How this differs from the past
- Public bodies within public bodies!
- Organisations: reform history
- Individuals: reform history
- Parent companies: reform history
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Chapter 8:
Chapter 9:
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Boxes
- Health and safety guidance
- Gross breach: reform history
Chapter 14: Was the failure a cause of the death?
Boxes
- Causation: reform History
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Boxes:
- Investigation: reform history
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Boxes:
- Private prosecution: reform history
Chapter 17: Sentencing
- Fines
- Publicity orders
- Remedial orders
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Boxes:
- Application date of publicity orders
- Which enforcement agency?
- Why publicity orders?
- Comparisons with similar court powers
- The purpose and extent of remedial orders
- Compensation orders
- Sentencing: reform history
Annexes
1. Schedule 1 to the Act: List of Government departments etc.
2. Special provisions allowing for the prosecution of unincorporated defendants
3. Companies convicted of Manslaughter (as of 6 April 2008)
4. CCAs Response to the Sentencing Advisory Panel
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PART ONE
EMERGENCE OF THE NEW LAW
In this part, we introduce the purpose of this guidance, discuss the origins of the
new Corporate Manslaughter and Corporate Homicide Act 2007, explain the
failings of the old law, the negotiated history of the proposals to replace it,
summarise the key provisions, and provide an overall assessment.
Chapter 1: Background
Chapter 2: Summary of the Act
Chapter 3: Assessment of the Act
CHAPTER 1
BACKGROUND
Purpose of the Guidance
The new statutory offences of Corporate Manslaughter (in England, Wales and Northern Ireland)
and Corporate Homicide (in Scotland) started to apply on 6 April 2008.1
This guidance produced by the Centre for Corporate All references in this guidance to the
Accountability is intended to help a range of offence of corporate manslaughter refer
interested groups and individuals whether they be equally to the offence of corporate
personal injury lawyers, other advisors, trade unions homicide the name of the same offence
and their safety reps, bereaved families, managers, in Scotland - unless it is clear from the
directors or others to understand the nature of the context that this is not the case.
new offence, in what circumstances organisations
will be prosecuted, areas in which it remains open to legal interpretation, and so on.
Specifically, this guidance addresses the following questions:
- what kinds of organisations can commit this offence?
- will the offence apply to non-UK organisations?
- will the offence apply to deaths outside the UK?
- when is there a relevant duty of care?
- what kinds of management failure can be subject to prosecution?
- what kind of senior manager conduct will result in a prosecution?
- how will a jury decide whether the failure of the organisation is gross
- how do you know whether a failure has caused the death?
- what will happen to convicted organisations?
Whilst comprehensive, the guidance tries to explain the new law in as accessible a manner as
possible. Some elements of the offence are not clear and can be interpreted in different ways.
Where this is the case, we analyse what the government intended to mean through considering
what it said in Parliament during the course of house of commons and house of lords debates, the
Explanatory Memorandum which was published alongside the Act, and the more recent Home
Office guidance. In time, as these matters come up before the courts, the meaning of particular
phrases in the Act will become more
certain.
Common law and Statutory offences
Apart from explaining the current law,
this guidance also helps explain how
this new statutory offence differs from
the old common law offence (see
Box, Common law and Statutory
offences), and what were the key
arguments during the process of reform
To see commencement order: http://www.opsi.gov.uk/si/si2008/uksi_20080401_en_1. This excludes the provisions that allow
the offence to apply to deaths in custody, and to the use of publicity orders (see page 25)
in the 12 years since the Law Commission in England and Wales2 published its proposals for
reform in 1996.
Why was reform considered necessary?
The need for reform was recognised as long ago as 1990 due to the collapse of the trial against
P&O European Ferries for the manslaughter of those who died when the Herald of Free
Enterprise capsized off the coast of Zeebrugge. People were shocked that the company was able
to escape conviction simply because the individual directors and senior managers were
acquitted. This was possible because the law only allowed companies to be convicted of
manslaughter if a senior manager or director of the company was convicted as an individual for
manslaughter. (This test was known as the identification doctrine - see Box The identification
doctrine). It was recognised then, that there was a need for a new offence that would allow the
company to be convicted on the basis of its own management failures, rather than on the basis of
proving an offence against one or more specific individuals.
It also came to be understood that the
legal test under the existing offence
seriously discriminated against small
companies, whilst giving immunity to
large ones. This was because with
small companies, it could be more
easily shown that the directors and
senior managers of the company were
well aware of the failures on the shop
floor that resulted in the death, often
giving direct instructions themselves
that resulted in the death. In small
companies, any workers death from
serious management failings could be
more easily be traced back to an
individual director or senior manager
of a small company allowing the
company to be prosecuted.
Large companies are different. They are often complexly organised, with most day to day
decisions widely distributed and delegated. Any failures are often the results of many individuals
working at different management levels within the organisation. As the Government said when
introducing this legislation in Parliament The driving force behind the Bill is that fact that the
current law of corporate manslaughter is based on too narrow a definition of corporate liability.
The law works reasonably well for small organisations, but it does not reflect the reality of
decision making in large or complex ones where failures in the management chain can rarely be
laid at the door or a senior individual manager.3 For this reason, it has been extremely difficult
to get enough evidence to prosecute a single director or senior manager for the offence of
2
The Law commission is an independent body set up by Parliament to review and recommend reform of the law in England and
Wales. http://www.lawcom.gov.uk/
3
Report Stage, House of Commons, 4 Dec 06, col 67.
manslaughter
in
large
companies. As a result, large
companies usually avoided
prosecution and always escaped
conviction (see annex 3).
History of Reform
:http://www.lawcom.gov.uk/docs/lc237.pdf
http://www.homeoffice.gov.uk/documents/cons-2005-corporate-manslaughter/2000-cons-invol-manslaughter.pdf?view=Binary
6
To understand what a crown body is, see Box: What is a Crown Body, on p.28.
7
To read more about the 2000 consultation: www.corporateaccountability.org/manslaughter/reformprops/2000/main.htm
8
http://www.homeoffice.gov.uk/documents/cons-2005-corporate-manslaughter/2000-cons-summary-responses.pdf?view=Binary
9
It did not concern itself with the individual offences of killing by gross carelessness or reckless killing which has been proposed
earlier by the Law Commission in 1996 and the Government in 2000..
5
10
prosecuted for aiding and abetting, and rejected the idea of taking investigation responsibilities
away from the police.
Following the consultation process, the Bill was scrutinised by a joint committee of the Home
Affairs and Work and Pensions Select committees (referred to in this report as the parliamentary
scrutiny committee). In its report, published in December 2005, the scrutiny committee set out a
number of concerns relating to the Bill. The main concerns were that:
- the offence should apply to large unincorporated organisations and police forces;
- it should be possible to prosecute parent companies in relation to deaths in their subsidiaries;
- exemptions to crown body immunity should be more limited, and in particular the offence
should apply to deaths in custody;
- only high levels of public policy decision making should apply;
- the offence should not require a civil law duty of care relationship;
- the management failure should not be restricted to a senior level within the organisation;
- the jury should not need to consider whether senior managers sought to cause the organisation
to profit or benefit from the failure in determining whether there has been a gross breach;
- consideration should be given to whether fines should be related to an organisations turnover,
and there should be additional sentences available to the court;
- there should be an additional offence allowing the prosecution of individuals who are a party
to the offence; and
- private prosecutions should be possible without the consent of the Director of Public
Prosecutions.10
In its response to the Committee, the Government accepted only a few recommendations. These
were that: public policy exemptions should apply at only a high level of decision making; the
senior management test would be reviewed; the factors for the jury to consider should be
changed; public body exemptions should be clarified; and the sentencing guidelines committee
should draft guidance on sentencing.11
In July 2006 the government published a revised Bill which was introduced into Parliament. This
Bill not only applied to England and Wales, but also to Scotland and Northern Ireland (see Box:
Scotland and the reform process, p. 12). Other than this, the key changes related to; detailing what
public bodies and what activities would be exempted; a revised set of factors for the jury to
consider in determining whether a senior management failure was gross; and applying the Bill to
police forces (and not just police authorities). During the course of debate in the Commons and
the Lords, the Government brought forward a number of amendments, the most important being
the following:
- the senior manager test was changed so that only a substantial element of the management
failure must be at a senior manager level;
- the offence would also apply to partnerships, trade unions and employer organisations as
long as they were employers;
- the court would have powers to impose a publicity order upon a convicted organisation;
- the offence would, within a 3 to 5 year time period, apply to deaths in custody.
10
http://www.publications.parliament.uk/pa/cm200506/cmselect/cmhaff/540/54002.htm
To read CCAs evidence to this: http://www.corporateaccountability.org/manslaughter/reformprops/2005/main.htm
11
http://www.official-documents.gov.uk/document/cm67/6755/6755.pdf
11
12
Key differences between the new statutory and the old common law offence
under the old common law offence, only companies could be prosecuted; the new statutory
offence also applies to crown bodies, partnerships and some other unincorporated organisations
(as long as they employ staff);
there will now be one single offence for England, Wales, Scotland and Northern Ireland. Before,
there were three separate common law offences: one for England and Wales, another for
Scotland, and another one for Northern Ireland (although there were significant similarities
between the three of them);
under the old common law offence it was necessary to prosecute a director or senior manager (a
controlling officer) of the company for manslaughter, in order to be able to prosecute the
company for manslaughter. The prosecution against the company was entirely dependent on the
evidence against the senior manager. Under the new statutory offence, the prosecution of a
director or senior manager is no longer necessary. Instead, there is now an entirely new test to
assess the guilt of the company that rests upon whether there has been a serious management
failure within the organisation;
there is a clearer test for assessing whether or not there has been gross negligence. The jury
must consider that the organisations failure fell far below what can reasonably be expected
and there are factors set out that the jury need to take into account.
under the old common law the offence, the only penalty was a fine. Under the new statutory
offence, in addition to fines, the court has the power to make a remedial order that requires the
company to remedy the breach of the Act. This is a similar power to the one that the courts have
following convictions for health and safety offences. The court also has the power to make a
publicity order that requires the organisation to publicise any conviction.
Key Similarities
the offences are both based around there being a gross breach of a duty of care
it is investigated by the police and prosecuted by the Crown Prosecution Service (in England and
Wales) and Procurator Fiscal Service (in Scotland)
the main sentence is an unlimited fine
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CHAPTER 2
SUMMARY OF THE ACT
Conditions for a prosecution
1.
The harm resulting in the death must have taken place in the UK (or in its territorial waters,
or on a British ship, aircraft or hovercraft). The harm (that results in death) need not be a
physical injury, it can also be a health impact, from a chemical or germ exposure (see
Chapter 4).
2.
The harm that results in the death must have taken place on or after 6 April 2008 (see
Chapter 5).
3.
The evidence to substantiate any of the management failures must have taken place on or
after 6 April 2008 (see Chapter 5).
4.
5.
The responsible organisation must have owed a duty of care towards the person who died
(see Chapter 8).
6.
This duty of care must have be been of a particular kind falling into the categories set out
in section 2 of the Act (see Chapter 9). In summary these must relate to the responsibilities of
- organisations as employers and occupiers towards their staff and those who enter their
land, premises etc;
- organisations as manufacturers towards those who buy their products;
- transport operators towards their passengers;
- hospitals towards their patients;
- local councils in the provision of particular services towards those receiving the
services;
- other organisations involved in the supply of goods or services towards those receiving
them;
- organisations involved in construction or maintenance operations towards those affected
by their activities;
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- organisations involved in the keeping of any plant, vehicle or other thing towards those
affected by this;
- commercial organisation to others affected by their activities.
There is another category of duty of care concerning bodies responsible for those in state
custody but this will only apply in three to five years time, 2011 to 2013.
7.
The duty of care must not have fallen into one of the exemptions contained in the Act. In
summary these are:
- where the death is a result of high level policy decision involving the allocation of
resources made by a public authority;
- a death which is the result of activities that only the state can uniquely perform (i.e
granting of certain licenses, diplomacy etc.). This exemption does not include a death of a
member of staff or involves the organisations responsibilities as an occupier;
- ambulance or fire or rescue services, where the death is of a member of the public due to
how an emergency response was carried out (other than in the nature of medical care
provided) ;
- where the death is the result of the MOD undertaking any military operations (or
preparatory activities or hazardous training activities in relation to them), even if the death
involves a soldier;
- where the death is the result of a public authority undertaking statutory inspections, a
local authority undertaking its child protection responsibilities or a probation board
undertaking its supervisory responsibilities - and the death is not that of a member of staff
or does not relate to occupier responsibilities;
- where the death is the result of the police force (or other public authority undertaking
these functions) involving any policing or law enforcement activity and the death is not
that of a member of staff or relates to occupier responsibilities .
See Box: Relevant duty of care: Rule of Thumb, p 53 for a more detailed summary, and
Chapter 10 for details.
There are few exemptions for commercial organisations unless the death is the result of it
carrying out activities whilst functioning as a public authority (in which case it has the same
exemptions as public authorities have above), or if the commercial organisation is carrying
out ambulance services on behalf of an NHS Trust etc, and a death takes place in the course
of responding to an emergency. Private security firms do not have the same exemptions as
police forces. (see Box: What constitutes a public authority, p. 42).
8.
There must be a failure in the way in which the organisation was managed or organised
which amounted to a gross breach of the duty of care. This requires evidence that the failure
fell far below what can reasonably be expected. In assessing this, the jury must consider
the seriousness of the breach of health and safety law and the extent to which it posed a risk
of death. The Jury can also consider the extent to which the attitudes, policies, systems of
accepted practices encouraged the failure, and whether there was any breach of health and
safety guidance (see chapter 11 and 12).
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9.
A substantial element of the management failure must be at a senior management level. This
is defined as the persons who play significant roles in
(i) the making of decision about how the whole or a substantial part of its activities are to
be managed or organised, or
(ii) the actual managing or organising of the whole or a substantial part of those activities.
(see chapter 13).
10. The failure must have caused the death. This need not be the only cause of death. One should
be able to say that but for the failure in question, the death would not have taken place (see
chapter 14).
Investigation, Prosecution, sentencing
11. The police will be the main investigators of the offence but will, as now, be supported by
health and safety regulators like the Health and Safety Executive. It will be prosecuted by the
Crown Prosecution Service in England and Wales, and the Procurator Fiscal Service in
Scotland (see chapters 15 and 16)
12. Private prosecutions can only take place after the DPP has given his or her consent (see
chapter 16).
13. Convicted organisations can receive an unlimited fine. The Sentencing Guidance Council
will publish towards the end of 2008 guidance to the courts in relation to the level of fines
they can impose. The Panel, that advises the Council, has proposed fines of between 2.5%
and 10% of an organisations turnover (see chapter 17).
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CHAPTER 3
ASSESSMENT OF THE ACT
Holding large and medium sized organisations to account
The new Act with its creation of a new test of organisational liability should make it easier to
prosecute large and medium sized organisations. The particular positive elements of the new test
are:
- it is based around evidence of a serious management failure, not on serious individual failures;
- there is a clearer test of whether or not the failure is gross namely, falling far below what
can reasonably be expected in the circumstances;
- there are clear factors that the jury must take into account seriousness of the breach of health
and safety law which will make it more straightforward for a jury in its consideration of the
organisations guilt;
- there are additional factors that the jury can take into account including whether the
organisation has breached any health and safety guidance, the organisationss attitudes,
policies, systems or accepted practices.
However, there is no certainty that it will make it easier to prosecute large and medium sized
organisations, as there remains some doubt about how the Crown Prosecution Service (in
deciding whether or not to prosecute) and the courts will interpret the requirement that a
substantial element of the management failure must be at a senior management level. Assuming
that this test works in the way that the CCA thinks and hopes it will (see Box: How does the new
test differs from the identification doctrine?, p. 58), the new test should be an important advance in
increasing corporate accountability following deaths.
The issue of sentencing
Making it easier to prosecute is one thing. Making convictions have real impact is quite another.
At the end of the day, the success of the Act will depend on the size of the fines that the courts
will impose on convicted organisations. The Sentencing Guidelines Council is now drafting
guidance on this. A consultation document produced by the Sentencing Advisory Panel (SAP)
which advises the Council - however proposed fines of between 2.5% and 10% of an
organisations turnover - a level of fine which, many would argue, fails to reflect the seriousness
of the sentence that would be imposed upon an individual convicted of manslaughter. (See Annex
3: CCAs response to SAP). This is therefore troubling. Whilst conviction should not result in
large or medium sized companies being forced to shut down (except in the most extreme of
cases), the penalty imposed must be very significant indeed in its punitive and deterrent impact..
The final guidelines on this will not be produced until the end of 2008.
Other positives but
One should note that there are also clear benefits with the offence opening up to partnerships,
police forces and crown bodies. Indeed, this is the first criminal offence to apply to crown bodies
and to police forces! However, in relation to many activities of these public bodies law
enforcement, emergency services, military operations, child protection issues, probation and
statutory inspections gross failures will only be able to result in prosecution of the public body
where the death was a gross failure in its responsibilities as an employer and occupier, not in
17
relation to its responsibilities as a provider of services and how this impacts on members of the
public. That is to say, if an employee dies, prosecution can take place; if a member of the public
dies as a result of provision of services, the public body cannot be prosecuted. Furthermore:
- in relation to certain policing and military activities, there is total exemption;
- if any death results from high level policy decision making relating to the allocation of
resources, the public body has immunity; and
- many public bodies will escape prosecution simply because they do not owe a civil law duty
of care.
These exemptions are clearly very disappointing and will result in inappropriate anomalies. In
another Hillsborough disaster the police force could be prosecuted if it resulted in the death of
a police officer, but not if it resulted in the death of a member of the public. In addition, it also
means that in a situation where the public body can not be prosecuted although there were clear
failures on its part the blame will fall solely on individuals.
In addition, crown bodies (that are not separately incorporated by statute) can only be prosecuted
if their names are mentioned in the schedule. Whilst all government departments are mentioned,
there are many bodies which are part of government departments that are not. So whilst the Home
Office is mentioned, the prison service is not, and nor are individual prisons. This means that
only the government department and not the organisation itself can be prosecuted. This will make
prosecutions involving these kinds of deaths very difficult indeed as the senior manager failure
will have to be at the government departmental level (i.e. Home Office), not at the level of the
sub-organisation (i.e. the prison) within the department. Deaths resulting from very serious
failure (including at a senior manager level) at the level of the prison, will only be able to result
in a prosecution if a substantial element of that failure was at a senior management level of the
Home Office.
Parent company immunity
One impact of the offence being based around the need for a civil law duty of care is that it
means that parent companies cannot be prosecuted for deaths resulting from the activities of its
subsidiary bodies however serious the failure of the parent company. This is despite the
Government in 2000 making it very clear that this was necessary (see Box: Parent Companies:
Reform History, p. 32).
Further delay before application
One significant concern we have about the Act is that it will not apply to any death even if it
took place after 6 April 2008 - unless all the failures necessary to prove the offence also took
place after that date. This will mean that prosecutions for this offence will not start for a very
long time indeed particularly for large organisations. Whilst the Act should only apply to deaths
after 6 April, it should apply if the management failures took place before then. The provisions
that allowed this to happen were not raised by any member of Parliament or member of the
Lords.
Other smaller concerns
There are some other disappointments: First, the fact that the offence does not apply in relation to
any harm (resulting in a death) that takes place outside the UK even if the management failure
took place in the UK. This creates a difference in treatment between organisations and
18
individuals (who can be prosecuted for manslaughter that they commit abroad). However, in the
Lords the Government spokesperson did say, that there may well be a case for looking at
jurisdiction further down the line. Second, the requirement for private prosecutions to have the
consent of the DPP in order for them to proceed even though the Law Commission and the
Home Offices first consultation document considered the requirement for consent unnecessary.
The question of individual culpability
Many have criticised the new Act in failing to deal with individual accountability in particular
in relation to the conduct of directors and managers. The Act only allows for the prosecution of
organisations - and individuals cannot be prosecuted for even contributing to this offence
(although the ordinary law of manslaughter will apply to them). For those who think that
prosecuting organisations is pretty worthless and that the only thing that will ensure proper
accountability and deterrence is the prosecution of directors and managers followed on
conviction by their jail sentence this new Act is "the dampest of damp squibs."12
It is absolutely the case that the lack of individual accountability for directors and senior
managers is a real problem. No director or senior manager of a large or medium sized company
has ever been convicted for either a manslaughter or a health and safety offence. The government
must respond to this particularly in relation to imposing duties on directors. And during the
course of debate the Government appeared to commit themselves to serious consideration of
reform.
However, the failure to create an individual offence in this Act is not decisive (for us) in our
assessment of it. It is important to be able to hold organisations, as well as individuals
accountable under the criminal law, particularly in situations where management responsibility is
diffuse and no individuals can be shown to have individually failed in a significant way. There is
however a caveat to this. It depends on the court imposing, on conviction, very significant fines.
Unless this happens, the Act will certainly be a damp squid.
12
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PART 2
ELEMENTS OF THE OFFENCE
This part of the guidance chapters 4 to 14 - looks at ten conditions that need to be
proven in order for an organisation to be prosecuted for this offence.
Chapter 4:
The harm, that resulted in the death, took place in the UK.
Chapter 5:
Both the harm (that resulted in the death) and the evidence
supporting the prosecution took place on or after 6 April 2008.
Chapter 6:
Chapter 7 and 8:
Chapter 9:
The duty of care fits within one of the categories of duties of care
set out in section 2.
Chapter 10:
The duty of care does not come within one of the exemptions.
Chapter 11:
Chapter 12:
Chapter 13:
Chapter 14:
20
21
CHAPTER 4
HAS THE HARM, RESULTING IN THE DEATH,
TAKEN PLACE IN THE UK?
The offence will only apply if the harm that resulted in the death took place within the UK England, Wales, Scotland and Northern Ireland.
It is important to note that it is where the harm not the death - occurs that determines whether
the offence applies.
Usually, the death will occur at the same time or very
soon after the injury, so both the injury and the death
will take place in the UK. However, where the harm
takes place in the UK but the death takes place some
time after this in another country, then the UK courts
will continue to have jurisdiction.
What is relevant is where the harm occurs. It is irrelevant where the management failure has
taken place. So:
- the offence will not apply if the management failure was in the UK but the harm resulting in
the death was outside the UK;
- the offence will apply if the management failure was outside the UK, but the harm resulting in
the death was inside.
It is therefore possible to prosecute foreign-based companies and partnerships13 in relation to
harm (that leads to death) when the harm takes place within the UK.
Section 28 of the Act also allows the offence to apply if the harm resulting in the death takes
place:
within the territorial sea around the UK;14
on or within 500 metres of offshore oil installations;15
on a British ship,16 wherever the ship is;
on a British controlled aircraft, wherever that aircraft is;17
on a British controlled hovercraft,18 wherever that hovercraft is;
outside of the British ship, aircraft or hovercraft (wherever that may be), where the body is
outside of the vessel due to a wrecking or other kind of mishap.19
13
The application of the offence to foreign registered companies and foreign partnerships, see chapter 6
Section 28(3)(a) of the Act.
15
Section 28(3)(e) of the Act. It is necessary first for an Order in Council to be adopted under section 10(1) of the Petroleum Act
1998.
16
Section 28(3)(b) of the Act. The ship must be registered under the Merchant Shipping Act 1995
17
Section 28(3)(c) of the Act. What constitutes a British aircraft is defined by section 92 of the Civil Aviation Act
18
Section 28(3)(d) of the Act. The meaning of a British Hovercraft is defined in the Hovercraft Act 1968
19
Section 28(4) of the Act
14
22
23
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CHAPTER 5
DOES THE EVIDENCE RELATE TO EVENTS
ON OR AFTER 6 APRIL 2008?
The Act only becomes effective on 6 April 2008.20 It is not only necessary that the harm resulting
in the death take place on or after that date, but anything done or omitted must also take place
after that date, in order for the offence to apply. If any of the conduct or events alleged to
constitute the offence occurred before21 that date, the common law offence will continue to
apply.
What this means that is that if the offence can
only be proved on the basis of evidence of
acts, failures, decisions etc. that occurred
before 6 April, then a prosecution under the
new statutory offence cannot take place. In
such a situation the existing law will continue
to apply.
This makes it likely that prosecutions under
the offence will not take place for quite some
time, even if the death took place after 6
April 2008, since the evidence proving gross
management failure will relate to events,
decisions, inaction, and so on, that are likely
to have taken place many months and even
years before then.
This will have a particular impact upon
deaths involving large organisations which
often involve evidence that goes back a
number of years - where this evidence might,
for example, relate to decisions taken long
ago, or long-standing but poor systems of
maintenance, training, or communication of
information.
Deaths in custody
Section 2(1)(d) and section 2(2) which together create a relevant duty of care between
organisations and for deaths in their custody and allows them to be prosecuted for failures in their
management of custody will not apply until a further commencement order is made by the
Secretary of State. The Ministry of Justices guidance says that the Government is working to
20
21
25
implement that aspect of the legislation within 3 years of the offence itself [6 April 2008], but
has indicated that a period of up to 5 years might be necessary.22
Publicity Orders
The Secretary of State will need to make a further order for the provisions on publicity orders to
apply. The Government is waiting for guidance to be issued by the Sentencing Advisory Panel on
how to sentence organisations convicted of the new offence of Corporate Manslaughter which
will in part deal with the use of publicity orders. A consultation document was issued by the SAP
in December 2007 (See Annex 3: CCAs response to SAP) and a final set of guidelines is due to be
ready by the Autumn of 2008.
22
26
CHAPTER 6
A TYPE OF ORGANISATION THAT CAN
COMMIT THE OFFENCE?
Section 1(2) of the Act sets out which organisations can commit the offence. These are:
Corporations incorporated in the UK or in any other country.23 This includes:
- Private and public companies (incorporated through Companies Act legislation);
- Public bodies that have been made companies
by statute. This includes, for example, local
authorities24 and NHS Trusts, and also some
crown bodies like the Postal Services
Commission and the Office of the Rail
Regulator, the Charity Commission, Postal
Services Commission and Northern Ireland
Departments;
- Companies set up under Royal Charter (such as
the BBC and some universities);
Individual culpability?
23
Corporation is defined in section 25 of the Act as not including a corporate sole but includes any body corporate wherever
incorporated.
24
Local Government Act 1972
25
A partnership is defined as (a) a partnership within the partnership Act 1980, or (b) a limited partnership registered under the
Limited Partnerships Act 1907, or a firm or entity of a similar character [to either of these] formed under the law of a country or
territory outside the United Kingdom. (Section 25)
26
Section 25 of the Act defines an employers association has having the meaning given by section 122 of the Trade Union and
Labour Relations (Consolidation) Act 1992, or Article 4 of the Industrial Relations (Northern Ireland) Order 1992
27
Section 11(1)
27
28
28
29
30
32
CHAPTER 7
DUTY OF CARE WITHIN THE ACT
It is necessary to show that there was a relevant duty of care between the organisation who
might be prosecuted and the person/people who died. This is perhaps the most complex area of
the offence both for lawyers and for lay people. This question can be divided into three separate
parts, which we deal with in three separate chapters.
For a prosecution against an organisation to be successful it is necessary to:
(a)
Show that there was an actual duty of care owed by this particular organisation to this
particular person who died. This is discussed in Chapter 8.
(b) Show that the relationship between the organisation alleged to have committed the offence
and the person who died, which creates this duty of care, falls within one of the categories
of relevant duties of care as set out in section 2 of the Act (i.e. employer/worker or
manufacturer/consumer etc). This is discussed in Chapter 9.
(c) Show that no exclusions apply. This is discussed in Chapter 10. These are exclusions
relating to deaths involving:
- public policy decision making by a public authority;
- activities which by their very nature can only be undertaken by a state body (what is
called in the Act exclusively public functions);
- military activities;
- policing and law enforcement activities;
- emergency services;
- child protection and probation functions;
- statutory inspections.
To determine whether or not there is a
relevant duty of care, it will often not be
necessary to go through these three steps as
outlined above. If, for example, one knows
right from the start that an exclusion applies
to a particular kind of activity in (c), then
there is no need to consider questions (a) and
(b).
Rule of Thumb
33
CHAPTER 8
IS THERE A DUTY OF CARE BETWEEN
THE ORGANISATION AND THE DECEASED?
There is a requirement that an organisation can only be prosecuted if it owed a relevant duty of
care to the person or persons who died. The first part of this is whether there was, in fact, a duty
of care.
The concept of duty of care comes from the civil law of negligence. In the context of personal
injury compensation, it describes particular relationships between organisations and individuals
where the law requires organisations to take reasonable steps to secure the health and safety of
the individual. (In the law of negligence, where there has been a failure to take these reasonable
steps, and harm is caused as a result, the organisation will have to pay compensation.)
The question of whether a duty of care does exist is generally determined by reference to three
broad criteria: (a) is the damage foreseeable? (b) is the relationship between the defendant and
victim sufficiently proximate? (c) is it fair just and reasonable to impose such a duty? The law
says, for example, that there is a duty of care on the part of an employer to take reasonable steps
to secure the safety of its employees and others working for it; an occupier of land has
responsibilities towards the safety of those who enter onto the land; a manufacturer has
responsibilities towards consumers who might use the product; hospital trusts towards their
patients; train operators toward their passengers etc.
The particular relationship between the
organisation and individual can be decisive in
determining whether or not there is a duty of
care, for example: if the deceased worker is an
employee and the employer is at fault; if the
deceased person is a train passenger and the train
operator is at fault; or if the person died in
custody. In all these situations, the law is clear
that a duty of care relationship exists. The
Government therefore argues that we would
expect the question of whether an organisation
owed a duty of care or not generally to be
straightforward.31 However, in other situations
it will be necessary for the courts to consider
other issues relevant to the facts of the case the
proximity of the relationship of the organisation
to the deceased, the forseeability of harm, and
consideration of whether it is just, fair and
reasonable to impose a duty of care.
31
34
In relation to the 2007 Act, there can be no prosecution unless it is established that the
organisation owed a duty of care to the person who died. Without getting into a lot of law the
easiest way to think about this is whether or not under ordinary circumstances a person would be
able to sue the organisations for compensation. If the answer to that is yes, then there is likely to
be a duty of care.
There are three situations where the Act says that there will be a duty of care relationship even
though, if the ordinary principles of the civil law of negligence were to apply, there would be no
duty of care. These are situations where:
- a claim under the law of negligence (requiring a duty of care relationship) has been replaced
by a statute that allows compensation to be given under rules of strict liability (so that it is not
longer necessary to prove a duty of care). An example of this is the Carriage by Air Act 1961 where passengers, in particular circumstances, do not need to prove a duty of care to receive
compensation.
- the organisation and the deceased had been engaged in a criminal enterprise. In such a
situation, the ordinary law of negligence says that no duty of care will arise between the
organisation and the deceased and so the victims would not normally claim compensation.32
- the organisation argues that the victim has voluntarily taken on the risk involved when
undertaking the activity which resulted in his death. In such a situation, a duty of care would
normally not exist.
The question of whether or not there is a duty of care and indeed whether it is a relevant one
is for the Judge (not the jury) to decide. 33 The Government argued that, since the question of
whether a duty arose was a matter to be decided by reference to case law, it was more sensible for
the judge to make that decision. It also argued that this would ensure that there was consistency
between civil and criminal law.34
In most cases it should be straightforward whether or not a duty of care exists.
32
This a doctrine called ex turpi causa non oritur actio - no lawsuit can arise from an illegal cause. An example of this kind of
situation was the case of Wacker, where a driver was prosecuted for the manslaughter of 58 immigrants who suffocated to death
in the back of his lorry while being illegally smuggled into the country. At the trial, the drivers defence lawyer had argued
initially successfully - that the driver did not owe a duty of care to the immigrants (and therefore could not be prosecuted for their
manslaughter) because they were part of a joint criminal act, and that under the law of negligence no duty of care arose in that
situation
33
Section 2(5)
34
House of Commons Committee 24 Oct 2006, column 104
35
36
37
CHAPTER 9
DOES THE DUTY OF CARE FIT WITHIN ONE OF THE CATEGORIES
SET OUT IN SECTION 2 OF THE ACT?
The 2007 Act states that not only must there be a duty of care under the law of negligence owed
by the organisation to the deceased person but that the duty of care must also be a relevant
one. Sections 2(1) and 2 (2) of the Act set out a total of seven categories within which the
relationship between the putative defendant organisation and the deceased must fall. If the
relationship between the organisation and the individual does not fall within one of these
categories, there can be no prosecution of the organisation even when a civil law duty of care
existed. The categories of duties of care in section 2 of the Act are therefore a sub-set of civil law
duties of care: the new offence does not impose new duties of care where these are not currently
owed.35 The categories are as follows.
1. Employer duties
This is a duty owed [by an organisation] to its employees or to other persons working for the
organisation or performing services for it.36
This duty relates to situations where the death occurs in the course of work - and includes the
employers obligation to provide a safe system of work to employees and other people whose
work it is able to control. It is within this category that most prosecutions under this Act are
likely to take place.
The person who died could either be an employee, a self employed person, a person working for
a sub-contractor, a volunteer, a consultant, a secondee or a person providing services or
undertaking work for the organisation in some other capacity.
The alleged failure would be on the part of the employer, or the organisation for which work was
being done or services performed.
2. Occupier Duties
35
38
The person who died could, for example, be someone knowingly (i.e. by trespassing) or
unwittingly gaining access to a railway line or crossing, be a guest in a hotel, someone walking
through a farmers field, a child playing on a building site, or a person falling down a manhole where the track operator, hotel owner, the land owner, the contractor, or the local authority was at
fault.
This category might also cover deaths from MRSA as a result of a hospital trust failing in its
hygiene responsibilities as an occupier.39
3. Duties owed as supplier of goods and services
This is a duty owed in connection with supply by the organisation of goods or services (whether
for consideration or not).40
This duty relates to situations where the person who died is a passenger or a customer and the
organisations duty to ensure that the goods or services they provide are safe. It does not matter
that these goods or services are provided for free.
The person who died could be a hospital patient, a train passenger, a child on a school trip, a
person who has purchased a product from a shop, a customer at a restaurant where the hospital,
the train company, the local education authority, the manufacturer/retailer, or the restaurant is at
fault.
It could also include situations where the death was the result of failures on the part of a
consultant, surveyor or architect.
Any death resulting from the supply of any service by a public body could be included in this
duty of care category for example, social services although there are exemptions in the Act,
which limit the cases where this would apply (see Chapter 10, below). It is important to note that
this duty is not intended to cover deaths resulting from activities of public bodies that are for the
benefit of the community at large but without supplying services to particular individuals.41
Examples of this might, for example, be the setting of regulatory standards by central
government, or the issuing of guidance to local authorities.
4. Duties owed by commercial activities in general
This is a duty owed in connection with the carrying on by the organisation of any other activity
on a commercial basis.42
This duty is a catch-all duty in relation to any duty of care owed by both private businesses and
public bodies in relation to their commercial activities, which are not covered by the duties set
out above. For example, this would cover the death of a passerby as a result of a falling scaffold,
or deaths of members of the public caused by a work-related road traffic vehicle (e.g. a driver
39
These kinds of deaths could also be covered in other categories of duty of care, see below
Sections 2(1)(c)(i)
41
See Explanatory Memorandum , para 23. The Government specifically argued that the word supply should not be replaced by
provide (see House of Commons Committee , 24 Oct 2006, column 96).
42
Sections 2(1)(c)(iii)).
40
39
falling asleep at the wheel, or through defective maintenance). It also covers those activities of
public bodies for which people pay.
The Explanatory Memorandum states that this category ensures that activities that are not the
supply of goods and services but which are still performed by companies and others
commercially, such as farming or mining, are covered by the offence.43 It is, however, not clear
what kinds of farming or mining deaths this could cover that would not already be covered by the
other categories.
5. Duties relating to construction, maintenance, and storing
There are two categories here. The first is a duty owed in connection with the carrying on by the
organisation of any construction or maintenance operation44 and the second is a duty owed in
connection with the use or keeping by the organisation of any plant, vehicle or other thing.45
It is not entirely clear what kinds of
deaths these two particular categories
of duties will cover that are not
already covered by other categories.
It would seem that deaths resulting
from construction or maintenance
operations, or from the use or keeping
of plant and vehicles, will already be
covered by other relevant duties of
care set out in the Act either with
the organisation being an employer, a
supplier of services (e.g. vehicle
maintenance) or because it is
operating commercially.
The Explanatory Memorandum to the Act, however, states that it is necessary to have this
category of relevant duties of care to cover deaths not otherwise included in the other duties of
care - resulting from public sector bodies undertaking construction or maintenance operations.46
It is notable that maintenance operations includes cleaning as part of its definition so this is
another category within in which deaths in hospitals from lack of hygiene could fit.
The use of the term other thing in the clause relating to the construction or maintenance
operations was deliberately chosen to ensure that the harm resulting from all substances
hazardous to health are included and it applies to the use of drugs in hospitals, as well as to the
storage of petrol .47
43
40
A duty owed by an organisation towards a person who is: (a) detained at a custodial institution48
or a custody area at a court or police station; (b) detained at a removal centre or short-term
holding facility; (c) being transported in a vehicle or being held in any premises in pursuance of
prison escort arrangements or immigration escort arrangements; (d) living in secure
accommodation in which he has been placed; or (e) a detained patient.49
This category will not come into effect for at least 3 years and possibly as many as 5. It covers
deaths of people in either prison or police custody. It is important to note that this does not cover
people arrested but not yet detained in a custodial institution it would not therefore cover police
restraint deaths outside police stations or other kinds of deaths at the hands of the police.
48
Section 2(7) defines this to include a prison, a young offender institution, a secure training centre, a young offenders
institution, a young offenders centre, a juvenile justice centre or a remand centre (section 2(7))
49
The meaning of detained patient is set out in section 2(7).
41
CHAPTER 10
EXEMPTIONS TO THESE CATEGORIES OF
RELEVANT DUTY OF CARE
The 2007 Act sets out a number of exemptions to these categories. It is important to recognise
that most of these exemptions do not affect deaths involving either employers duties to
employees and others at the workplace, or occupiers duties.
Deaths resulting from public policy
decision-making by a public
authority
public
authority)
Section 3(1)
Para 25 of the Explanatory Memorandum
52
House of Lords, Grand Committee, 15 Jan 07, column GC222
53
The Guidance states that: 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. In Parliament, the Minister spoke of High level
decisions concerning the allocation of resources, the weighting of competing interests or the establishment of priorities. (See
Commons Committee, 24 October 2007, column 107)
51
42
body has embarked on a particular activity, it must fully observe its safety responsibilities and
cannot plead lack of resources as a defence.54
It could be argued that this explicit exemption is unnecessary since the kinds of circumstances
where such public policy decisions could be alleged to be a cause of a death will either not create
a duty of care or not fit any of the categories of relevant duty of care in section 2. However, the
government has put this exemption in to be absolutely certain that these strategic public policy
decisions cannot be the basis of a manslaughter prosecution.
Deaths resulting from an activity considered to be an exclusively public function
Where any death results from an organisations activities which are in the exercise of an
exclusively public function, the organisation does not owe a relevant duty of care.55
This exemption, however, does not apply where the deceased is an employee of the organisation
(or to others working for the organisation) or where the death is the result of the organisations
responsibility as an occupier.56
Exclusively public functions fall into two categories:
(a) functions that fall within the prerogative of the crown. These include activities that are at
the heart of state responsibility such as concluding treaties, conducting diplomacy and
deploying troops overseas or maintaining the peace in the United Kingdom.57
(b) functions which by their nature, can only be exercised by statutory (or prerogative)
authority that is to say must be of a sort that cannot be independently performed by a
private body.58 As the Explanatory Memorandum states:
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 license
(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.59 (emphasis added)
Therefore, the Governments position is that whilst the NHS provides medical services under a
statutory framework, medical treatment is not an exclusively public function. That is so, because
there is nothing intrinsic to medical treatment that requires statutory powers - private
organisations can also offer medical treatment. Examples of exclusively public functions, given
by the Government, have been the issuing of driving licenses, the granting of planning
54
43
permissions and the operational activities of the armed forces.60 However, the exemption does
not cover activities simply because a license is required to perform those activities (e.g. a
television license).
It is important also to note that the exemption is not intended to cover activities that are ancillary
to a public function. So keeping people in custody is intrinsically a public function, but secondary
activities such as providing catering to prisoners or responding to their health care needs are
not.61
Deaths arising from Ministry of Defence activities
The Ministry of Defence (MOD) is a crown body named in Schedule 1 of the Act so it can
technically be prosecuted. However, as set out above, in the chapter on jurisdiction (see Chapter
4), the MOD cannot be prosecuted for deaths that it may cause abroad. In addition, a very wide
range of operational military activities will be exempt by virtue of being exclusively public
functions (see above).
Section 4 of the Act in effect confirms in further detail MOD immunitys in relation to
operational activities as well as extending it to deaths of its own soldiers in those situations. 62
These are:
- operations, including peacekeeping operations and operations for dealing with terrorism, civil
unrest or serious public disorder, in the course of which members of the armed forces come
under attack or face the threat of attack or violent resistance;
- activities carried on in preparation for or directly in support of these operations;
- training of a hazardous nature, or training carried out in a hazardous way, which it is
considered needs to be carried out, or carried out in that way, in order to improve or maintain
the effectiveness of the armed forces with
respect to such operations.
Levels of MOD immunity
The MOD has received a number of crown
censures for health and safety failings, some of
which involved fatalities in the way in which
training has been carried out. For example [one
man] drowned in a cave in Wales, whilst
undergoing adventurous training. The MOD
has also received a crown censure about [the
death] of a Royal marine during recruit training.
Furthermore, arrangements for monitoring
and reviewing preventative measures were
criticised in a case involving the accidental
shooting of a solider by a gun used in an
improvised firing position. None of these cases
would be covered by the exemption.
House of Commons, Committee stage, 24 Oct 06,
column 120
44
routine training, training for new roles or equipment, adventurous training, or the normal testing,
evaluation and maintenance of equipment.63 It said that: The exemptions deal with activities that
are in preparation for, or directly in support of particular operations. We think that supports a
narrow meaning of the exemption where the police or Ministry of Defence will need to establish
a proper connection between the activities in question and the relevant operational activity.64
Examples of what would fall into the exemptions include the organisation of forward
deployments in immediate preparation of combat; reconnaissance missions; the establishment of
supply chains in readiness for operations; and some conditioning exercises such as live fire
training exercises or acclimatisation activities that are designed to prepare member of the armed
forces for the particular circumstances that they are likely to encounter.
In addition, special forces do not owe any relevant duty of care in relation to any death they
may cause. Special forces are defined as those units of the armed forces the maintenance of
whose capabilities is the responsibility of the Director of Special Forces or which are for the time
being subject to the operational command of that Director.65 The exemption would include a
situation where a member of the special forces died due to his/her unsafe living quarters.
In effect, this means that the MOD can only be prosecuted in the context of non-operational
activities. This could include, for example, deaths in the context of vehicle or building
maintenance, failures to maintain safe systems in non-hazardous routine training, defective
buildings, or bullying at a barracks.
Deaths resulting from policing and law enforcement activities
Section 5 of the Act states that police forces and other public authorities carrying out policing
functions (that is to say functions of the same or a similar nature as those of police forces) do
not owe a relevant duty of care in relation to deaths either of the police officer or a member of
the public when the death take place as a result of:
- operations for (a) dealing with terrorism, civil unrest or serious disorder, (b) where they
involve the carrying on of policing or law-enforcement activities, and (c) officers or
employees of the public authority in question come under attack, or face the threat of attack or
violent resistance, in the course of the operations. All three of these circumstances must exist
for an operation to be defined as such;
- activities carried out in preparation for, or directly in support of, such operations; or
- training of a hazardous nature, or training carried out in a hazardous way, which it is
considered needs to be carried out, or carried out in that way, in order to improve or maintain
the effectiveness of officers or employees of the public authority with respect to such
operations.
This means that those responsible for any action by the police in carrying out an anti-terrorist
operation that leads to the death of an individual could not be prosecuted, no matter how culpable
the management structure of the police service might have been. However, that same police force
63
House of Commons Committee meeting, 24 Oct 2006, column 115: House of Lords, Grand Committee, 17 Jan 07, column
GC230.
64
House of Lords, Grand Committee, 17 Jan 07, column GC230
65
Section 4(4)
45
66
This is a point made by many people during the parliamentary debate including the Conservative and Liberal Democrat
spokespeople in Parliament. See House of Commons Committee 26 Oct 2006, columns 134 and 136
67
House of Commons Committee, 26 Oct 2006, column 125
68
House of Lords, 17 Jan, Grand Committee, column GC241
69
House of Commons Committee, 26 Oct 2006, column 125
46
- the provision of policing services to the community, involving for example, the security at
football grounds;70
- police car chases.
This would mean that if a situation similar to the Hillsborough disaster happened again, and a
police officer died, the police force could be prosecuted; but if a member of the public died, then
the police force could not be prosecuted.
The only kinds of deaths resulting from police activities that can result in a prosecution are those
involving:
- police officers (or those working for a public authority undertaking policing activities) when
they are not involved in operations dealing with terrorism etc;
- other people working for the police force/public authority or performing services as long as
they are not involved in such operations; and
- members of the public who die as a result of failures of the police force in its role as occupier
of land/premises when the incident does not relate to the undertaking of an operation.
- and, in three to five years time, members of the public (or police officers) at a police station
It should be noted that private security bodies do not have this exemption. The Government has
explained its position this way:
As a public body charged with public duties, the police are in a position quite unlike a
private security firm. The differences between the two types of bodies warrant a different
approach in relation to the offence. Unlike a private security firm, a police force cannot turn
down a request for protection and find itself entirely without responsibility. A private
security firm would not be held responsibility if it refused a job because of a lack of
resources and the client was subsequently attacked. Similarly, a private security firm should
turn down a job if it does not have the appropriate resources. Nor would one consider
taking legal action against a private firm for refusing the job, but the police provide
services to all members of the public and those whom the police have been unable to aid
may wish to take legal action.
The police do not have infinite resources . . Questions about how the police carry out
their activities will ultimately involve issues of public policy how to prioritise their
resources between different operational demands and how to balance the protection of
potential victims with risks to suspects, members of the public or others caught up in an
incident. We do not think that the best way to secure accountability for the way in which
the police organise and manage their activities is to subject them to the criminal offence set
out in the Bill.71
70
This is because of section 5(3) which states that the category of duty of care, relating to the supply by the organisation of good
and services section 2(1) (i) does not apply to policing functions.
71
House of Commons Committee, 26 Oct 2006, column 133
47
72
Section 6(8)
House of Commons Committee, 26 Oct 2006, column 160. The reference to NHS trusts in effect relates to NHS ambulance
providers. Their private counterparts are also covered when they have an arrangement with an NHS Trust to carry out comparable
functions. It will not exempt private ambulance services when carrying out routine planned work. House of Lords, Grand
Committee, 17 Jan 07, column GC253.
74
Section 6(7)
75
Section 6(4)
73
48
circumstances, caused a death through providing the wrong medical treatment this could be
subject to a manslaughter charge. However, if it is alleged that the death was the result, for
example, of a decision to have treated someone in the wrong order, a prosecution could not take
place.
It should be noted that the exemption does not apply to activities that do not form part of the
response, such as maintaining vehicles or training staff. If a vehicle driven at speed to an
emergency crashed because its brakes had not been adequately maintained, it would not be
covered by the exemption.76
It is notable that the exemption does not include organisations providing an emergency service on
a commercial basis including, for example, private hospitals, or private companies offering
fire fighting services to the film industry unless they were standing in the shoes of a statutory
body (e.g. those that provide fire fire-fighting services at airports).77 The Government explained
this distinction by saying that organisations within the public and private sectors are different in
two key aspects. First, the private sector organisation can choose the terms and contractual
arrangements with a client and on that basis agree the service that it can supply. Undoubtedly that
will take into account the resources that the client is prepared to have standing at the ready.
Secondly and perhaps more importantly, a private organisation can call in the back-up of the fire
brigade if it is unable to cope with the demands of a given situation.78 In contrast a statutory fire
authority is under an obligation to provide a
fire and rescue service, regardless of the
When will the Child Protection exemption apply?
demand upon its services. At one time, The exemption is not intended to exclude from the
offence the services offered generally by local
there may be a fire at a chemical plant, a
multiple pile up on the motorway and a authorities to children and families. Once a decision
number
of
house
fires
burning has been taken to provide a service or to meet an
simultaneously. The demands of the fire assessed need for example, home help for the
authorities are unpredictable and extremely parent or a disabled child, or accommodation for a
child who is being looked after management failure
difficult prioritization decisions may need
in providing those services should be covered.
to be made to make best use of
Clearly, some decisions will be subject to the
resources.79
exemption for public policy decision such as decision
The exemption does not cover organisation
that are not in the business of providing
rescues but which may be called upon to
provide rescue at sea.80
Deaths resulting from Child Protection
and Probationary duties
76
49
81
Parts 4 and 5 of the Children Act 1989; Part 2 of the Children Scotland Act 1995; Parts 5 and 6 of the Children (Northern
Ireland) Order 1995. Part 4 of the 1989 Act concerns care and supervision orders. Such orders can only be made by a court if it is
satisfied that the child concerned is suffering or is likely to suffer significant harm. The court must then place a child under the
care of supervision of a local authority. Part 5 of the Act deals with the powers of local authorities and the police to remove a
child in case of an emergency.
82
Chapter 1 of Part 1 of the Criminal Justice and Court Services Act 2000; Section 27 of the Social Work (Scotland) Act 1968;
Article 4 of the Probation Board (Northern Ireland) Order 1982.
83
It is unlikely that a duty of care would in fact arise in that situation in any case.
50
Statutory inspections
Section 3(3) states that public authorities do not owe a relevant duty of care in relation to a
death which occurs from inspections carried out in the exercise of a statutory function unless
the death is of:
- an employee of the public authority carrying out the inspections, or
- any person, as a result of failures on the part of the public authority in its role as an occupier of
premises.
For example, failures on the part of Health and Safety Executive (HSE) inspectors in not
identifying an obvious breach of health and safety law, that subsequently results in a death of an
employee of the company, cannot result in the prosecution of the HSE.
It is unlikely that such inspection bodies would in any case either owe a duty of care in such a
scenario or fall into one of the relevant duty categories so the principal function of this
exemption is to create certainty.
51
52
53
www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/277/27707.htm
54
55
CHAPTER 11
WAS THERE A FAILURE IN THE WAY IN WHICH
THE ORGANISATION WAS MANAGED OR ORGANISED?
Once it has been established by the judge that there is a relevant duty of care between the
organisation and the deceased, it is then necessary for the jury to consider:
- the adequacy of the way in which the organisation is managed or organised (this chapter);
- whether a substantial element of the management failure was at a senior management level; (see
Chapter 12);
- whether this amounted to a gross breach of the duty of care (see Chapter 13); and
- whether this breach caused the death (see Chapter 14).
The first part of this is consideration of the adequacy of
the way in which the organisation is managed or
organised. It is important to note that the Government
expects this test to allow for a scrutiny of how the
organisation managed the activity in question throughout
the whole organisation; it is not confined to looking only
at a specific level of management.84
is
Consideration will not be given just to formal systems for managing an activity within an
organisation, but also to how in practice this was carried out. The adequacy of the
management of health and safety is absolutely at the heart of this offence. Although, the issue of
causation comes up later, the best way to think about this is to ask these kinds of questions:
- were there any management failings that caused or created the circumstances for the death to
take place?
- was the training, supervision, instruction, provision of equipment and other relevant
information, handling of risks assessments etc adequate and if not were they part of the cause
of the death?
- did managers fail to do something that you would have expected them to have done?
- were managers aware of risks to which they failed to respond?
- was there a breach of health and safety law that resulted in the death, and was based upon
management failing to do something that they should have done?
84
85
56
CHAPTER 12
WAS A SUBSTANTIAL ELEMENT OF THE FAILURE
AT A SENIOR MANAGEMENT LEVEL?
Having identified that there is a management failure linked to the death, it is then necessary to
show that a substantial element of that failure was at a senior management level. Section 1(3)
states specifically that:
An organisation is guilty of an offence under this section only if the way in which its
activities are managed or organised by its senior management is a substantial element in the
breach referred to in subsection (1).
This has become known as the senior manager test. It raises a number of questions:
What is meant by an organisations senior management?
57
This remains somewhat obscure. It could mean, for example, that a significant element of the
organisations failure must be a failure of one or more senior managers. However, in Parliament
the Minister said that it would not be necessary for the
prosecution to identify individual senior managers and prove their failures. In many cases
that may be an important part of the evidence and the prosecutions case. Where the
evidence shows that senior management as a group failed to put in place systems and to
ensure that they were adhered to, there will be no need to show that each individual senior
manager failed to have a safe system in place. The prosecution will need to show only that
there was no safe system where there should have been one. The ability to look generally at
senior management is reinforced by moving from references to senior managers to
references to senior management.
88
58
It is not entirely clear whether senior management failure must amount to a substantial element
simply in the breach of a duty of care by the organisation, or in the gross breach of duty. This
will make quite a difference since it will be harder to show that senior management played a
part in the gross breach.
The relevant section mentions the breach referred to in subsection (1), not the gross breach,
and the language of both the Explanatory Memorandum and the Ministry of Justices Guidance
refers always to the organisations breach or failure, not to gross breach or gross failure.90
It would therefore appear that there needs only to be a substantial element in the breach of duty.
Issue of Delegation
To what extent can senior managers of an organisation delegate responsibilities down the chain
of command so that a substantial element of any failure can never be identified at the senior
management level? In the Lords, Lord Bassam of Brighton, for the Government, stated that:
We need to distinguish between the delegation and the abdication of responsibility. What
is not acceptable is the abdication of responsibility for health and safetyI think that we
are all agreed on that. I fully support the sentiment behind the amendments aimed at
ensuring that organisations are not able to abdicate health and safety responsibilities to
avoid liability for this new offence. We would be very concerned if the Bill made that a
possibility, or, worseas has been suggestedactively encouraged some organisations to
delegate inappropriately.
The Government recognise the importance of health and safety being led from the top of
organisations. . At the same time, they do not want organisations to believe that no
management of health and safety can be delegated. Appropriate delegation and appropriate
supervision of such delegation is part of the proper management of health and safety.
However, inappropriate delegation of health and safety responsibilities will not be a
legitimate defence to a charge of gross negligence. The courts will be able to consider how
89
P.14
The Guidance says: However it will not be possible to convict an organisation unless a substantial part of the organisations
failure lay at a senior management level (p.12), and the Explanatory Memorandum states that, unless a substantial element of
the breach lies in the way the senior management of the organisation managed or organised its activities. (para 15)
90
59
the activity was managed at senior level, and if the answer is that those at senior level
failed to manage health and safety appropriately in respect of the activity, that will be
potent evidence of failures at that level.
There may be organisations that bury their head in the sand and erroneously believe that
the way to avoid the offence is simply to delegate responsibility out of the boardroom
entirely. But those organisations are taking the gamble to abdicate responsibility and risk
liability versus having the certainty of avoiding liability through managing health and
safety properly at a senior level.
We believe that this also supports the Governments position that health and safety should
be led from the top. Only those organisations in which senior management are taking
health and safety seriously can be sure of avoiding liability for this offence. We believe
that it is right that, if such people have been managing the organisation well, the
organisation as a whole should not be guilty under the new offence. That should be true
regardless of the size or structure of the organisation.91
The Ministry of Justices guidance supports this position when it states that 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.92
91
92
60
CHAPTER 13
WAS THERE A GROSS BREACH?
If a management or organisation failure has been identified and a substantial element of that
breach was at a senior management level - it then needs to be shown to have been a gross
breach of the duty of care. The Act states that:
A breach of a duty of care by an organisation is a gross breach if the conduct alleged to
amount to a breach of that duty falls far below what can reasonably be expected of the
organisation in the circumstances.93 (emphasis added)
Sections 8(2) and 8(3) of the Act provide the jury with criteria that it should take into account in
determining whether or not this test is satisfied. This in particular requires the jury to focus on the
organisations compliance with health and safety law. The criteria are divided into those that the
jury must consider and those that it may consider. The jury must consider:
- whether the organisation had failed to comply with any health and safety legislation;
- how serious was this failure; and
- how much of a risk of death did this failure pose.
In the draft Bill, the jury had to consider risk of serious injury but this would have been
inconsistent with the law relating to the individual offence of manslaughter.94 However, the
Government has suggested that the jury can take the risk or serious injury into account (see
below).
Health and Safety Legislation includes any statutory provision dealing with health and safety
matters95 not just conventional health and safety law contained in the Health and Safety at
Work Act 1974 and the Northern Irish equivalent enforced by the Health and Safety Executive
and local authorities. It also includes, for example, those provisions in other regulatory law (like
the Consumer Protection Act, and the Environment Acts) enforced by other regulatory bodies.
The Jury may also consider:
- the extent to which the evidence shows that Health and Safety Guidance
there were attitudes, policies, systems or Health and safety guidance means any
accepted practices within the organisation that
code, guidance, manual or similar publication
were likely to have encouraged any such health that is concerned with health and safety
and safety law failure or to have produced matters and is made or issued (under a
tolerance of it which, in effect, constitute the statutory provision or otherwise) by an
authority responsible for the enforcement of
culture of the organisation; and
- any health and safety guidance that relates to the any health and safety legislation. (Section 8(5))
alleged
breach.96
The
Explanatory
Memorandum states that Guidance does not provide an authoritative statement of required
93
Section 1(4)(b). The wording far below what can reasonably expected is the same as that used in the offence of Death by
Dangerous Driving.
94
See the House of Commons Committee, 26 Jul 2006, column 172.
95
Section 25
96
Section 8(3)
61
standards and therefore the jury is not required to consider the extent to which this is not
complied with. However, where breaches of relevant health and safety duties are established
guidance may assist a jury is considering how serious this was.97 Therefore compliance by
directors with the new guidance on directors responsibilities can be taken into account by the
jury.
The Act specifically states that these are not exhaustive issues for the jury to consider and it can
also have regard to any other matters they consider relevant.98 The Government has said that,
for example, the degree to which the activities in question posed a risk of serious injury.99
Gross Breach: Reform History
In the offence proposed in the 1996 Law Commission report and the 2000 Consultation document, it
was necessary to show that the management failure constituted conduct falling far below what can
reasonably be expected in the circumstances. The test in the Governments 2005 draft Bill and in
the final Act in relation to proving that there had been a gross breach of duty of care was exactly the
same.
What did change, however, in 2005, was that the Government proposed to give guidance to the jury to
assist them in deciding whether or not this test had been met. The draft bill stated:
In deciding 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, and if so(a) how serious was the failure to comply;
(b) whether or not senior manager of the organisation
(i) knew of ought to have know that the organisation was failing to comply with that legislation
or guidance;
(ii) were aware or ought to have been aware of the risk of death or serious harm posed by the
failure to comply;
(iii) sought to cause the organisation to profit from that failure.
Although the Parliamentary Scrutiny Committee was broadly supportive of the legislation containing
factors of this nature, they were critical of the precise wording used. It recommended that juries
should not be required to consider a factor which makes reference to senior managers in an
organisation and the factor relating to whether senior managers sought to cause the organisation to
profit or benefit from the failure should be deleted (paras. 191 and 194).
In its response to the committee, the government accepted these two recommendations (p.17) and
both of these factors were omitted when the Government introduced the Bill to Parliament in 2006,
Interestingly, an amendment was tabled in the House of Lords to try and bring back motive as a
factor. The government responded to this by saying: We are not convinced that a motive, for
example, to save money is relevant to whether there had been a breach of a duty of care. An
organisation may, through utter disregard, fail to consider what actions need to be taken for an activity
to be carried out safely. . [Th]e public sector would rarely be motivated by profits. Conversely, it
could be said that commercial organisations are only motivated by profit. (House of Lords, Grand
Committee, 17 Jan YEAR???, column GC274)
97
Para 38
Section 8(4)
99
Minutes of the House of Commons Committee meeting, 26 Oct 2006, column 173.
98
62
CHAPTER 14
WAS THE FAILURE A CAUSE OF THE DEATH?
Section 1(1) of the Act states that an organisation is guilty of an offence if the way in which its
activities are managed or organised causes a persons death.
The usual principles of causation in the criminal law will apply to determine whether or not this
is the case. Therefore it is not necessary to show that the management failure was the sole cause
of death; there can be a number of different causes of death. The key thing is that but for the
particular failure in question there would have been no death.
The Ministry of Justice guidance states that the prosecution will need to show that but for the
management failure (including the substantial element attributable to senior management) the
death would not have occurred.
It is not clear, however, that the Ministry of Justice is correct in saying that the but for test
includes the substantial element attributable to senior management. Section 1(1) above does not
indicate this, and the section 1(3) on the need for senior management involvement in the failure
does not suggest a linkage with causation.
Causation: reform History
The Law Commissions 1996 proposals contained a special provision relating to causation. This
stated that a management failure by a corporation may be regarded as a cause of a persons death
notwithstanding that the immediate cause is the act or omission of an individual. The Law
Commission believed that such express provision was necessary in order to make it clear that the
ordinary principles of causation for homicide were applicable to the corporate offence. Accordingly,
a jury could find that a corporations management failure was the cause of death despite an
intervention by an individual, for example the deliberate failure of an unsupervised frontline
operator.
In 2000, the Government supported the Law Commission on this point though it did not provide
any further explanation. In 2005, however, the clause was no longer in the draft bill. The
Government explained that the reason for this was that that case law (namely the case of
Environmental Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22.) has developed since
the Law Commission reported in 1996 so that the current position on causation means that an
intervening act will only break the chain of causation if it is extraordinary and we do not consider
that corporate liability should arise where an individual has intervened in the chain of events in an
extraordinary fashion causing the death, or the death was otherwise immediately caused by an
extraordinary and unforeseeable event.
The Parliamentary Scrutiny Committee thought that although it was the case that the law had
changed, it might change back again and it would be preferable to make it clear on the face of the
statute that an intervening act or failure of a worker would not prevent an organisation being
convicted. However, the government was not persuaded, and in its response stated that : Overall,
we are confident that in light of Empress Car the courts will adopt a sensible approach to causation
in the context of corporate manslaughter.
63
PART 3
INVESTIGATION, PROSECUTION AND SENTENCING
This part of the report looks at how the offence will be investigated prosecuted and
sentenced.
Chapter 15: Investigation
Chapter 16: Prosecution
Chapter 17: Sentencing
64
CHAPTER 15
INVESTIGATION
The offence will be investigated by the police, with the assistance of the relevant regulatory body
providing specialist advice on the relevant health and safety issues. This could be the Health and
Safety Executive, a Local Authority, the Food Standards Agency, the Environment Agency etc.
In relation to work-related deaths those involving potential breaches of the health and safety
at Work Act 1974 there already exist three separate protocols (one for England and Wales,
another for Northern Ireland, and another for Scotland) which set out how these deaths will be
investigated (and in particular the relationship between the police and the Health and Safety
Executive and Local Authorities).
The Protocols
The English/Welsh protocol is a document agreed upon by the Health and Safety Executive, most
Local Authorities and all 43 police forces in England and Wale, the British Transport Police and
the Crown Prosecution Service.100 The protocol does not formally apply to the Civil Aviation
Authority and the Maritime Coastguard Agency but both of these agencies have agreed to abide
by the protocols principles;
It concerns "the effective liaison between the parties" involved in the investigation and
prosecution of work-related deaths in England and Wales. It applies when there is a work-related
death which is defined as a fatality resulting from an incident arising out of or in connection
with work. It has the following statement of intent: In the early stages of an investigation,
whether any serious criminal offence has been committed is not always apparent. The parties to
the protocol are committed to ensuring that any investigation into a work-related death is
thorough and appropriate', and agree to work closely together in order to achieve this. Decisions
in relation to who will lead the investigation, and the direction it will take, should be timely,
informed by the best available evidence and technical expertise, and should take account of the
wider public interest. Should there be any issue as to who is to be involved in investigating any
work-related death, then the parties will work together to reach a conclusion.
The protocol states that police officer who attends the scene of the death should immediately
inform a "senior supervisory officer" about the incident who should then: "attend the scene and
any other relevant place to assess the situation, review actions taken to date and assume
responsibility for the investigation." The police will take primacy of the investigation, when: "the
investigation gives rise to a suspicion that a serious criminal offence (other than a health and
safety offence) may have caused the death". The regulatory body will take primacy when "it
becomes apparent during the investigation that there is insufficient evidence that a serious
criminal offence cause d the death".
The Scottish protocol which is signed by the police, the HSE, the Crown Office and Procurator
Fiscal service - is based upon very similar principles with its only significant variation reflecting
100
65
the much more active role that the Procurator Fiscal Service has (compared to the CPS) in
directing investigations.101 So the Scottish protocol states: The police officer of supervisory
rank should, when they have assessed the situation and reviewed actions taken, contact the
Procurator Fiscal, or if out of hours, the duty Procurator Fiscal, and appraise them of the full
circumstances of the death. They should comply with any instructions issued by the Procurator
Fiscal who may decide to attend the scene of the death and/or to instruct a pathologist to attend.
Other specialists should attend the locus in accordance with local arrangements for the
investigation of a serious crime to ensure a complete and thorough investigation.
These protocols are very focused on clear work-related deaths where the Health and Safety
Executive and local authorities are the regulatory bodies. It would seem that they would have to
be revised in order to deal with a much wider category of deaths that are potentially covered by
the new legislation. The Ministry of Justice guidance does not indicate that there is necessarily
going to be revisions to these protocols however.
101
66
67
CHAPTER 16
PROSECUTION
The following points should be made about prosecution:
- The prosecution will be taken by the Crown Prosecution Service (in England and Wales), and
by the Procurator Fiscal Service (in Scotland). All elements of the offence need to be proved
beyond reasonable doubt
- In England, Wales and Northern Ireland, no private prosecution can be instituted without the
consent of the relevant Director of Public Prosecutions.102 With consent, a private prosecution
can take place in these three countries; in Scotland, however, a private prosecution for this
offence is completely prohibited (see Box: Private Prosecution: Reform History, p. 68).
- Criminal proceedings will take place in the Crown Court (in England, Wales and Northern
Ireland) and in the High Court of Justiciary (in Scotland).
- There are special provisions that ensure the prosecution of a company for the offence of
manslaughter does not create further difficulties for the prosecution of a a director or senior
manager of that company for an offence under section 37 of the Health and Safety at Work
Act 1974 (HASAWA 1974).
In order to prosecute under section 37 of the HASAWA 1974 it is necessary that (a) a health
and safety offence has been committed by a company and it has to be a company; and (b)
there must be evidence that the corporate offence was the result of consent, connivance or
neglect on the part of a director or senior manager.
Section 19(1) of the Act allows an organisation to be prosecuted in the same proceedings for
both an offence of corporate manslaughter and a health and safety offence, and juries to be
invited to return a verdict on each charge103 if the interests of justice so require.
This is helpful because it means that at a trial, a company can be prosecuted for both corporate
manslaughter and a health and safety offence. If the jury convict the company for
manslaughter, the jury can also be asked to return a verdict for the health and safety offence as
well. With this health and safety conviction, a director or manager can then be prosecuted
under section 37 HASAWA 1974.
Section 19(2) also allows an organisation that has been convicted of corporate manslaughter to
be charged subsequently with a health and safety offence arising from the same set of
circumstances. 104 This allows the director, along with the company, to be prosecuted for a
health and safety offence subsequent to the prosecution of the company for corporate
102
Section 17
Section 19(1)
104
Section 19(2)
103
68
manslaughter. Usually this would not be allowed to happen because the rule of double
jeopardy does not allow a defendant to be prosecuted twice over a similar set of facts.105
- Existing statutory provision concerning the procedure of prosecuting a corporation will apply
when any of the unincorporated bodies to which this offence applies (see Chapter 2, and annex
2).106
- It should be noted that more than one organisation can be prosecuted in relation to any
particular death as long as they all owed a relevant duty of care and otherwise met the legal
tests.107
Private Prosecutions: Reform Process
The Law Commission stated in its 1996 report that: [T]he right of a private individual to bring
criminal proceedings, subject to the usual controls, is in our view an important one which should not
be lightly set aside. Indeed in a sense it is precisely the kind of case with which we are here
concerned, where the public pressure for a prosecution is likely to be at its greatest, that that right is
most important: it is in the most serious cases such as homicide, that a decision not to prosecute is
most likely to be challenged. It would in our view be perverse to remove the right to bring a private
prosecution in the very case where it is most likely to be invoked.
In 2000, the Home Office agreed with the Law Commission, without providing any reasons. (Para
3.7.6)
In 2005, however, the Government changed its position. It said that there was significant concern
amongst those who responded to the Home Office 2000 consultation document that this would lead
to insufficiently well founded prosecutions, which would ultimately fail and would place an unfair
burden on the organisation involved with possible irreparable and personal harm. The Government
recognises these concerns. (para 60)
The Parliamentary Scrutiny Committee, however, stated that: We consider that the interests of
justice would be best served by removing the requirement to obtain consent. We are persuaded that
this recommendation would not lead to spurious and unfounded prosecutions, as there exist a number
of other obstacles to bringing a private prosecution for corporate manslaughter. (Para 340)
The Government, however, did not change its position. In its response to the Parliamentary
Committee, it argued that any decision by the DPP not to provide its consent could be subject to
judicial review, and it rejected the position that the DPP might have a conflict of interests when
considering whether to prosecute crown bodies or not (page 32).
In the House of Lords, the Government made the point that in effect the DPPs consent would solely
depend on whether there was sufficient evidence. It is in no ones interests to see cases go to court
where there is no realistic prospect of conviction under the new framework. It also argued that the
label of manslaughter is and should be taken very seriously; [W]e do not want companies that
manage health and safety well, but which tragically have a fatal accident, to have their reputations
damaged through unfair charges. It also argued that the requirement of the DPPs consent did not
105
Prosecution
bodiesprosecutions,
often do not likebut
to give
an option
between
two offences
as they
are more
likely to choose
the07,
lesser
prevent
private
onlyjuries
created
a filter.
(House
of Lords,
Grand
Committee,
18 Jan
offence. This provision will ensure that a company can be first prosecuted for corporate manslaughter, and then subsequently the
column
295)for section 37 of the Health and Safety at work Act 1974.
director
can GC293,
be prosecuted
106
107
69
CHAPTER 17
SENTENCING
On conviction, the court has the power to impose three different kinds of sentences upon the
convicted organisation: a fine, a publicity order, and a remedy order. The Government has asked
the Sentencing Guidelines Council to publish guidance for the court on sentencing convicted
organisations for this offence. In November 2007, the Sentencing Advisory Panel (SAP)
published a consultation document and final guidelines are expected to be published in Autumn
2008.108
Fines
Section 1(6) of the Act states that an organisation that is guilty of corporate manslaughter or
corporate homicide is liable on conviction on indictment to a fine. All convictions for these
offences are on indictment so this applies to all convictions.
The Act provides no further details about the kinds of fines
that should be imposed. In its consultation document, the
SAP proposed that the court should impose a fine of
between 2.5% and 10% of the organisations turnover. The
court should first take the baseline figure of 5% of the
organisations turnover and then, depending on the existence
and extent of various mitigating or extenuating
circumstances, increase the fine up to 10% of the turnover
or reduce it down to 2.5%.109 It proposed that the court can
then consider any mitigation related to the offender (rather
We cannot imprison a
company, so it is vital that the
penalties for the new offence
properly punish the convicted
organisation and sufficiently
deter them from future
offending
(Minister, House of Commons
Committee, 24 Oct 2006, column 70).
than the offence), which may take the fine below the range.
70
a) the fine should be sufficient to have the required impact, in most cases without imperiling
either the existence of the organisation or the funds necessary to remedy defective systems;
and
b) where the offender is funded from the public purse, the fine will be paid with public
money.
However, in relation to fining public bodies, the SAP stated: The objectives of the fine to
reflect public concern at the harm caused by the offence and to deter the offender from breaching
its duties in the future, are just as important whether fining a public body or a private company.
The SAP stated that it did not think that the court should take account of the effects of imposing a
publicity order (see below) when considering the level of fine.110
Publicity Orders
Section 10 (1) of the Act gives the court the power to make a publicity order. This would
require the organisation
to publicise in a specified manner (a) the fact that it has been convicted of the offence;
(b) specified particulars of the offence
(c) the amount of any fine imposed;
(d) the terms of any remedial order made.
The order must set out a period of time within which the
requirements of the order must be complied.111
Before the court proposes to make the order it is required
to find out the views of any enforcement agency it
considers appropriate.112 As part of the order, the court
can require the organisation to supply the enforcement
agency within a specified time evidence that the
requirements of the order have been complied with.113
Before imposing the order, the court must also have
regard to any representations made by the prosecution or
by the organisation.114
A failure to comply with the order is an offence that can result in an unlimited fine.115
The SAP proposed that the court should impose a publicity order, along with a fine, following
every conviction. It stated that options for the form of the order include:
110
Para 83
Section 10(3)(a)
112
Section 10(2)(a)
113
Section 10(3)(b)
114
Section 10(2)(b)
115
Section 10(4)
111
71
Remedial Orders
Section 9 of the Act gives the court the power to impose a remedial order requiring the
organisation to take specified steps to remedy:
(a) the breach mentioned in section 1(1) [of
the Act] (the relevant breach)
(b) any matter that appears to the court to
have resulted from the relevant breach
and to have been a cause of the death
(c) any deficiency, as regards health and
safety matters, in the organisations
policies, systems or practices of which
the relevant breach appears to the court
to be an indication.118
Para 81
Para 82
118
The Minister told the Commons Committee that if the convicted company failed to put in place adequate systems for
monitoring the safety of its activities, and the consequence of that was dangerous practice on the shop floor, the court could be
empowered to order changes both to the systems and the to the practices that led to the fatality (House of Commons Committee,
26 Oct 2006, column 176)
119
Section 9(2)
117
72
- the court has had regard to any representation or evidence of the convicted organisation and
the prosecution; or
- the prosecution has consulted with any appropriate enforcement agency.120
The order must specify the period of time
in which the steps set out in the remedial
order are to be taken, and may require the
organisation to supply to an enforcement
authority evidence that those steps have
in fact been taken.121 A failure to comply
with an order is a criminal offence which
can result in an unlimited fine. 122
The Ministry of Justices guidelines state
that it expects courts to impose a
remedial order in relatively rare
circumstances since the relevant regulator
would have been involved in the case
from the outset and will have been able to
use their existing enforcement powers to
address any dangerous practices long
before a case comes to court.
The SAP says that the remedial order will
provide an additional safeguarding power
for a limited number of cases where the
offender has failed to respond to other
interventions. With regard to what effect
the imposition of the remedial order will
have on the overall sentence that should be
imposed, the SAP stated that:
120
Section 9(3)
Section 9(4)
122
Section 9(5). Prosecution would be the responsibility of either the Crown Prosecution Service in England and Wales.
121
73
Compensation Orders?
There is no actual provision in the Act for the court to
impose a compensation order, but section 130(1) of the
Powers of Criminal Courts (Sentencing) Act (PCCSA)
2000, would gives the court the power to make an
order requiring the organisation to pay compensation
for any personal injury, loss or damage resulting from
this offence, and it must give reasons for its decision if
it does not make such an order. The SAP made the
following comments about the use of this power.
A compensation order can be made in favour of the
relatives and dependants of the deceased, in respect of
bereavement and funeral expenses. An order in respect
of funeral expenses can be made for the benefit of
anyone who has incurred them, but compensation for
bereavement can only be made in favour of persons
who could claim damages for bereavement under the
Fatal Accidents Act 1976, namely the spouse of the
deceased or, in the case of a minor, his/her parents. The
maximum sum which may be claimed for bereavement
is 10,000.
More than one person may have been killed as a result
of the offence; others may have been injured. The
amount of compensation should be such as the court
considers appropriate, having regard to the offenders
means. Where both a fine and a compensation order are
appropriate but the offender lacks the means to pay
both, the compensation order payments will take
priority. Compensation paid is deducted from any
damages received in civil proceedings, so the existence
of a pending civil claim should not in itself prevent the
imposition of a compensation order. However, in cases
prosecuted for the offences considered in this paper,
the level of complexity surrounding the calculation of
compensation is likely to be such that it is an issue best
resolved outside the criminal proceedings. Whilst a
court is always under an obligation to consider whether
a compensation order can be made, it is more likely
that a court will decide to leave the issue to the civil
court, in which case it must give its reasons for doing
so.
(paras 87-89)
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Para 86
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75
77
124
Section 14
These orders are subject to the negative resolution procedure, which means that they are laid before Parliament and become
law unless they are specifically annulled. In Scotland similar provision can be achieve under the existing powers of the High
Court to regulate procedure by Act of Adjournal.
126
They can only be sued through the operation of the Crown Proceedings Act 1947 which makes the Crown vicariously liable as
an employer or occupier for the acts of its servants and agents.
127
Section 11(1)
128
Section 13(2) for police and section 14(1) for partnerships
129
Those working for crown bodies are employed by or under the crown for the purposes of a particular body
130
Section 11(3)
125
78
- that members, trainees, special constables, cadets of a police force are to be treated as
employed by that force.131
- that members of the armed forces are to be treated as employed by the Ministry of
Defence132
Creating occupiers: Although individual government departments in fact occupy particular
premises, it is the Crown that legally occupies these buildings. As a result, in order to ensure that
the individual government departments are deemed to be an occupier under the Act and owe the
duties of care of any occupier, the Act states that these premises are to be treated as occupied
by the relevant government department or body. Similar provisions relate to the police.133
Changing functions: Section 16 of the Act sets out which crown body or police force will be
prosecuted when the functions - the carrying out of which resulted in the death - have been
transferred to another body.
The assumption is that the new body which has taken over the functions will be the body that will
be prosecuted. However, where the functions move to a body that is not a crown body or police
force, then the proceedings will take place against the last crown body or police force that carried
out the functions.
However, the Secretary of State does have the power to pass an order requiring that the
prosecutions take place against whichever organisation he or she considers appropriate.
131
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80
81
82