Corporate Manslaughter - The New Regime

The Corporate Manslaughter and Corporate Homicide Act 2007

("the Act"), which came into force on 6 April 2008,

introduces a new statutory offence of corporate manslaughter in

England, Wales and Northern Ireland, and corporate homicide in

Scotland. The new offence can apply to corporations, certain

specified public bodies, police forces, and any partnerships,

trade unions or employers' associations that are

employers.

The introduction of the Act reinforces the need for

organisations to ensure they are taking appropriate action to

reduce the risk of health and safety incidents. While the Act

is concerned with the liability of organisations rather than

individuals, the government expects it to help to focus the

minds of senior managers on the importance of effective health

and safety leadership.

The new offence

Relevant organisations will be guilty of the new offence if

the way in which their activities are managed or organised:

causes a person's death; or

amounts to a gross breach of a relevant duty of

care owed to the deceased; and

in addition, the role played by senior management is a

"substantial element" in the

breach of duty

The Act defines senior management as those who play

significant roles in the making of decisions about how the

whole or a substantial part of an organisation's activities

are to be managed or organised, or in actually managing or

organising those activities. The smaller the organisation

concerned, the easier it will be to identify the individuals

with decision-making powers.

What is a breach of duty of care?

Organisations owe a duty of care under the law of

negligence. Relevant duties in relation to the Act include

those owed to workers and to occupiers of premises, as well as

those connected to supplying goods and services, construction

or maintenance operations and the carrying on of any other

commercial activity.

The test to determine whether there has been a gross breach

of any relevant duty of care is whether the conduct in question

falls far below what can reasonably be expected of the

organisation in the circumstances. This will depend on whether

the organisation failed to comply with any health and safety

legislation and, if so, how serious that failure was and how

much of a risk of death it posed.

This will involve looking at senior management conduct,

collectively and individually, to pinpoint the root cause of

the failure to provide adequate practices and systems for

managing the particular actives that...