The ‘Don’t Kill’ Bill! The Corporate Manslaughter & Corporate Homicide Act 2007

The question of how to hold organisations to account after major disasters has been the subject of an ongoing debate for many years. The Zeebrugge ferry disaster, which led to the deaths of more than 150 passengers and nearly 40 crew, some 20 years ago, brought the issue firmly into the public spotlight with the public enquiry identifying "a disease of sloppiness" and negligence at every level of the company's hierarchy. Despite an inquest jury returning verdicts of unlawful killing, there were no convictions of individual or corporate manslaughter.

The present government has been planning for almost 10 years to introduce tough legislation to take organisations to task when serious failings in health and safety lead to the death of an individual. The result is the Corporate Manslaughter & Corporate Homicide Act 2007, which received Royal Assent on 20 July 2007 and will come into full force on the 6th of April 2008. This issues forum will explore the provisions and implications of the new Act, and look at the framework of measures senior management should already have in place to ensure the effective health, safety and welfare of their employees, keeping them from under the spotlight of prosecution.

What Offence Will It Create?

The Act creates a new statutory offence in England, Wales and Northern Ireland of "Corporate Manslaughter", and "Corporate Homicide" in Scotland. Corporate manslaughter is a term used in English Law to reflect an act of homicide committed by a company as opposed to an individual. In a case following the Zeebrugge ferry disaster, the court of appeal confirmed in principle that a company can commit manslaughter, albeit that all the individual defendants in that case were acquitted.

An organisation will be guilty of the offence of corporate manslaughter if the acts or omissions of senior management cause a person's death. The failing could be either a single or series of errors, which directly lead to a gross breach of the duty of care owed by the employer to the deceased.

What Is The Current Position?

The current law of corporate manslaughter links an organisation's guilt to the gross negligence of an individual who is said to be the embodiment of the organisation. It has proved very difficult to prosecute large organisations. Since 1992, there have been 34 prosecutions for corporate manslaughter of which only 6 have resulted in conviction. Notably, the only successful prosecutions have involved small companies where the individual in question was intimately involved in the health and safety activities.

A company may also be found guilty of breaching the main provisions of the Health & Safety at Work Act etc 1974 (HSWA) if it has failed to take all reasonably practicable steps to ensure the health and safety of its employees and those affected by its business. This duty of care obviously extends to fatalities and can lead to unlimited fines. The HSWA contains provisions to find directors, officers and managers personally liable and potentially subject to imprisonment, where a health and safety offence has been committed by the company with their consent or connivance, or is attributable to their neglect.

Why The Need For Change?

With manslaughter charges and unlimited fines already a possibility under current health and safety legislation, this is a valid question. The answer may partly lie in the current social climate where individual responsibility is increasingly seen to be hidden behind the faade of large organisations, which themselves cannot be taken appropriately to task. Fines solely levied against organisations are not seen to be an appropriate punishment for a fatality, where the individual is seen as an innocent party. This view has been heightened by the media after similar cases to Zeebrugge such as Piper Alpha, the Kings Cross fire and the Southall rail crash, where attempts to prosecute these corporations and their senior management under the law of gross negligence manslaughter came under significant difficulty and ultimately failed.

The difficulty with the existing law of corporate manslaughter is that it does not reflect the realities of the modern corporate environment. Before a company can be found guilty, an individual who is a "controlling mind" of the organisation must first be found personally guilty of the offence. It is this "identification principle" that has led to serious difficulties in prosecuting medium to large organisations with diffuse management/corporate structures, and where health and safety has traditionally been delegated to a lower tier of management and health & safety professionals rather than the controlling/directing mind. Under the present law, it is not possible to add up the negligence of several individuals to show the company as being grossly negligent. In reality it is...