Corporate Manslaughter and the Corporate Homicide Act 2007

11 September 2007

In April 2008, the new Corporate Manslaughter law will finally find its way onto the statute book. Prosecutors will no longer have to struggle trying to prove that an individual who could properly be identified as the directing mind of an organisation is guilty of gross negligence. Instead liability for the new offence depends on a finding of gross negligence in the way in which the activities of the organisation are run.

The elements of the new offence are:

An organisation must owe a "relevant duty of care" to the victim. In particular this includes duties owed to employees, as an occupier of premises, in the supply of goods or services or in the use or keeping by the organisation of any plant, vehicle or other things. The explanatory notes to the Act make it clear that supply of goods or services specifically includes the supply of services by the public sector
The organisation must be in breach of that duty as a result of the way in which the activities of the organisation are managed or organised – the management failure. The Act stipulates that a substantial element of that breach must lie in the way in which senior management managed or organised its activities
The failure must have caused the death
The failure must be gross in that it falls far below what could reasonably be expected. When considering this the jury may consider the extent to which the organisation was in breach of its obligations under health and safety legislation
The sanctions following conviction are:
- An unlimited fine
- A Remedial Order – requiring the organisation to address the deficiencies in health and safety management that lay behind the breach
- Publicity Order – requiring the organisation to publicise details of the offence

The Act specifically excludes certain matters from the ambit of the offence. Only interpretation of the legislation by the Courts will truly dictate how these exclusions will apply but as regards social care providers the following may be relevant:

Decisions of public policy taken by public authorities are excluded - it is recognised that decisions concerning competing public priorities are not susceptible to review in the courts
Child Protection – The Act recognises that legislation imposes a number of functions on Local Authorities to safeguard the welfare of children, and in some cases to take steps to protect a child from harm. The Act does not apply in relation to the exercise or failure to exercise such powers. Local Authorities will be covered by the offence in respect of ensuring the safety of their employees or the safety of the premises they occupy.

Practical issues for social care providers to consider include:

Local Authorities and those private social care organisations they work with will be subject to the new law
There is a current exponential increase in the number of claims being brought against Local Authorities for failing to take children into care. The guidance note helpfully makes it clear that it is unlikely that Local Authorities would owe a duty of care in these circumstances and is explicit – stating that if a child not taken into care was subsequently fatally injured, such circumstances would not be covered by the offence
There is no increased personal criminal liability but the existing law allows for such liability in any event under the individual law relating to gross negligence manslaughter, or under the health and safety legislation ie Section 37 or 7 of the Health and Safety at Work Act 1974
In the event of prosecution the evidence given in the Crown Court must in part focus on the way in which senior management acted
Where management of an activity includes reasonable safeguards, in particular compliance with health and safety legislation and guidance, and death none the less occurs, there should be no question of prosecution and conviction
It is not expected that more than 10 to 15 prosecutions might be brought in any year

For more information or advice, please contact Sarah or Andy