Corporate Manslaughter & Corporate Homicide
Corporate Manslaughter is an offence created by Section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007 (‘the Act’). It came into force on 6th April 2008.
The offence was created to ensure that companies and other organisations can be held properly accountable for very serious failings resulting in death. The offence of gross negligence manslaughter is abolished insofar as it relates to companies and other organisations.
Corporate Manslaughter is wider in scope than the previous common law offence. It continues to apply only to the most serious corporate failings. There is a high threshold for liability, requiring proof of a gross breach of the relevant duty of care. However, it is no longer necessary to show that a person who was the ‘controlling mind’ of the organisation was personally responsible for the offence.
Under the 2007 Act, the offence of Corporate Manslaughter relates to the way in which the relevant activity was managed or organised throughout the company or organisation. Wider considerations such as the overall management of health and safety, the selection and training of staff, the implementation of systems of working and the supervision of staff can be taken into account.
An organisation is not liable if the failings were exclusively at a junior level. The failings of senior management must have formed a substantial element in the breach. However, the failings at the senior management level do not of themselves have to amount to a gross breach of duty. Liability for the offence is assessed by looking at the failings of the organisation as a whole.
The prosecution must prove that the breach of duty was causative of death. The test is whether the breach made a more than a minimal contribution to death. Because the defendant is a corporate body, the penalty must be fine. The Court also has the power to make ancillary orders including Remedial Orders and Publicity Orders.
A definitive sentencing guideline has been published by the Sentencing Council with effect from 1st February 2016. The level of the sentence will depend on the size of the organisation. The sentence range is specified as £180,000 to £20 million.
The offence of Corporate Manslaughter is indictable only. In England and Wales, proceedings may not be instituted without the consent of the Director of Public Prosecutions. Every Crown Prosecutor may give consent and it is recommended that the file is endorsed with specific reference to the consent under Section 17 of the Act.
Cases that may result in proceedings for corporate manslaughter, with the exception of cases involving unincorporated partnerships, must be referred to the Special Crime Unit, Special Crime and Counter-Terrorism Division.
Source – Crown Prosecution Service (CPS)
The Corporate Manslaughter Act - main provisions
The main provisions of the Act are a set of ground rules whereupon if a person adheres to the requirements expected of it and the company, it will be seen to comply and have nothing to fear. In a nutshell, the application of common-sense practices and policies are the required foundations to ensure corporate responsibilities are being met in full.
Three words sum up this Act - 'Duty of Care'. This is not merely the duty of care that a business is obliged to administer to its employees, it is equally the duty of care that someone is seen to be exercising in regard to corporate responsibility. This equally encompasses the environment, human rights and third world poverty where the business has an effect or may have an impact directly or otherwise.
So what of corporate failings?
Prosecutions will be of the corporate body and not individuals, but the liability of directors, board members or other individuals under health and safety law or general criminal law, will be unaffected. This means that the corporate body itself and individuals can still be prosecuted for separate health and safety offences. The Act also largely removes the Crown immunity that applies to the existing common law corporate manslaughter offence.
Any offence committed will:
- require the organisation to owe a duty of care to the victim, which is obvious in a driving scenario
- focus on senior management failures, either individually or collectively
- require evidence that the management failure amounts to a gross breach of duty to take reasonable care
Management failure criteria will consider:
- the way in which a particular activity is being managed or in reality, mismanaged
- responsibility falling on senior directors and managers
- actions of individuals who have a "significant role", where management responsibilities bear on the organisation as a whole or substantial part of it. This includes health and safety and fleet managers
- actions of a middle manager undertaking a senior role will be relevant
A jury hearing a corporate manslaughter case will still have to find that there has been a gross breach of duty by the company or gross negligence manslaughter by a senior manager. The company would have failed to embed a health and safety culture within its management process. The jury will hear evidence of how the company's health and safety culture measures up against the Health and Safety at Work Act 1974 and its subsequent management regulations, codes of practice and guidelines.
It starts in the boardroom
Protecting the health and safety of employees or members of the public who may be affected by a company’s activities is an essential part of risk management and must be led by the board. In the transport sector, the ownership of a company’s actions is already catered for under Operator Licensing; this is by the company secretary, usually, a company director, having to pen his/her name alongside the transport managers' to satisfy the requirements. However, within this realm, no such signature is required, being the 'helmsman' is sufficient.
For any corporate body to avoid finding itself in the position of facing prosecution, there are sufficient support structures in place offering guidance. The Institute of Directors and HSE have published guidance for directors on their responsibilities for health and safety, which can be downloaded from the link below in pdf format.
Leading Health & Safety at Work
Health and safety law states that organisations must:
- provide a written health and safety policy if they employ five or more people
- assess risks to employees, customers, partners and any other people who could be affected by their activities
- arrange for the effective planning, organisation, control, monitoring and review of preventative and protective measures
- ensure they have access to competent health and safety advice
- consult employees about their risks at work and current preventative and protective measures
Failure to comply with these requirements can have serious consequences for both organisations and individuals. Sanctions include fines, imprisonment and disqualification.
Consider also the following:
If a health and safety offence is committed with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary or other similar officers of the organisation, then that person, as well as the organisation can be prosecuted under section 37 of the Health and Safety at Work Act 1974.
Those found guilty are liable for fines and, in some cases, imprisonment. In addition, the Company Directors Disqualification Act 1986, Section 2(1), empowers the court to disqualify an individual convicted of an offence in connection with the management of a company. This includes health and safety offences. This power is exercised at the discretion of the court; it requires no additional investigation or evidence.
Individual directors are also potentially liable for other related offences, such as the common law offence of gross negligence manslaughter. Under common law, gross negligence manslaughter is proved when individual officers of a company (directors or business owners) by their own grossly negligent behaviour cause death. This offence is punishable by a maximum of life imprisonment.
What does this mean for drivers and operators?
Firstly, bear in mind that the very essence of this legislation is the duty of care to members of the general public and the workforce no matter what the size. Unfortunately, not all operators enter into all aspects of their duties in the same manner. There are in some cases serious shortcomings where compliance is concerned, which does not bode well for the industry as a whole.
The overall view is a simple one:
- A company accepts a duty of care to all
- The company and its management must be diligent and thorough in their commitment to ensuring that risks are assessed, staff are trained and there is an audit trail that can be followed and any risks identified are dealt with
In much the same way as a business must comply with current transport legislation that affects it, if a business gets the core of Health & Safety management correct, then it will have satisfied the criteria and will have nothing to fear. Lack of attention to the requirements is a route to non-compliance and possible prosecution.
Drivers
Drivers should have nothing to fear from this, as long as they themselves adhere to the legislative requirement and the procedural practices that are put in place by their employers. If a driver finds that his employer is doing nothing to support and protect him/her, then they have a duty themselves to take the matter further and should be fully supported by the powers that be outside of their workplace. No driver should be forced to break the law or endanger the lives of themselves or others.
Operators
The best advice here for operators is not to panic. Operators should have a good look at the operation and identify any weak areas. The best tool to use in this endeavour is common sense, if it poses a danger, no matter how small, then a risk assessment is required. This does not have to be complicated, there are tools and further guidance within this section of the website to assist in compliance.
All operators should already be complying with the basic requirements here anyway, by virtue of systems that should already be in place, such as:
- daily walk round checks or first inspection
- safe, evenly distributed and secure loading of vehicles
- regular Preventative Maintenance Inspections (PMI's)
- quarterly driving licence checks
- tachograph training and compliance with EC561/06
- manual handling training
- risk assessments on loading, unloading, movement of goods by forklift truck etc. It should be remembered that risk assessments also include the vehicle and driver 'on the road' and at a client's premises
- drivers/warehouse operative’s procedural practices and sign off sheets etc.
To ensure any procedure is robust enough to pass any test, an appointed person should try it out themselves e.g. the daily walk-round check. A simple form (see the one in the appendix of the Department for Transport Guide to Maintaining Roadworthiness (page 108)) may be used or one of the daily check book available from transport stationery suppliers to complete the checks and note the time taken. When satisfied that the check has been completed properly that time can be set as the minimum requirement. Remember, this time must be shown on the tachograph chart/digital card as 15 - 30 minutes or so (depending upon the size of vehicle being driven) in other work modes before the vehicle moves at the start of each duty.
Operators must ensure that drivers are aware of their responsibilities in this or any other safety-related matter and should receive training in how to do things correctly. Checks should be carried out to see that tasks are being carried out as instructed and in the proper manner.
Checking the security and weight of the load is also an area where a good system will pay dividends. There are many types of load but the common thread is how it is secured in/on the vehicle. Operators should ensure that any ropes, sheets, straps and chains are in good condition and that vehicle doors on rigid vehicles, drop sides and curtains are all-sufficient for the task and well maintained.
These are simple examples of everyday aspects of an operation and so their checking should come easily.
Driving on Company Business
Under the Corporate Homicide and Manslaughter Act 2007, it is evident that all companies large and small alike must adopt a risk assessment policy for all drivers of the company and non - company vehicles (grey fleet) where the same is used for company business.
Whereas this has already received much attention in the fleet car sector, it could easily be overlooked in other sectors, especially Road Haulage where managers travel between depots/offices on company business using their own cars.
The new Act includes all persons who drive any company vehicle or their own vehicle on company business. To this end both driver and vehicle should be fit for purpose, which implies that the driver should:
- hold a full drivers licence for the class of vehicle
- be properly insured and fully road legal
- ensure the vehicle is in a roadworthy condition, with a current MOT test certificate and be properly maintained
- be physically fit, not tired or ill and not taking any medication that could impair their actions
- wear prescribed spectacles for driving if required
For the most part, all regulated vehicles and their drivers are covered by the provisions of EU Drivers' Hours' Regulations and the Goods Vehicle's Operators Act 1995, and as such the points above are already in place. However, Transport Managers, or those within the organisation with responsibility for transport matters, should ensure that all drivers are aware of company policy on this subject, and this should also include members of the sales/service teams and company directors.
Any company policy to cover this area should also include a mobile phone and satellite navigation (sat-nav) section, advising that phone calls should not be made or received whilst driving unless it is with the use of an approved hands-free device. In the case of and data entry of a sat-nav, the best practice, in any event, is to park safely and deal with any message separately from the act of driving.
Companies must ensure checks are made on all who drive on company business and keep records of such checks.
There is no doubt that this piece of legislation will be tested, and much more will be written about it and so it is advisable to obtain guidance and advice from a consultative authority such as the Health & Safety Executive or any other professional body that is available to assist/advise businesses.
To read more about the Act and access the invaluable resources on the Health & Safety Executive website, please use the links below.