Transcript Corporate Manslaughter And Corporate Homicide Act 2007 Perspective Philip and Ciaran McAleenan © McAleenan & McAleenan, 2007

Corporate Manslaughter
And
Corporate Homicide
Act 2007
Perspective
Philip and Ciaran McAleenan
© McAleenan & McAleenan, 2007
Zeebrugge 1987, (192 deaths)
“…from top to bottom the body corporate was infected with the
disease of sloppiness…. The failure on the part of the shore
management to give proper and clear directions was a
contributory cause of the disaster.”
Piper Alpha Oil Platform 1988, (167 deaths)
“The cause was said to be a combination of “mundane design
faults, human error and unsafe working conditions.”
Clapham Rail Crash 1988, (35 deaths)
“…emphasized how senior management failures provided the
context of this error; supervisory mechanisms did not work;
there was no instruction, training or checking of the technician’s
work, and there were high levels of understaffing.”
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Manslaughter by Gross Negligence
•
Was a duty of care owed to the deceased?
•
Was that duty of care to the deceased breached?
•
Did the breach of the duty of care cause or
contribute to the death of the deceased?
•
If the breach of the duty of care caused or
contributed to the death of the deceased, should
the breach of duty be characterised as gross
negligence and therefore as a crime?
Corporate Liability for Manslaughter
“….the identification principle remains the only basis
in common law for corporate liability for gross
negligence manslaughter”.
Source: Lord Justice Rose in Attorney General’s Reference No 2 of 1999
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Corporate Manslaughter and Corporate
Homicide Act 2007
Holds organisations to account when a gross breach of a
relevant duty in they way its activities are managed or
organised has had fatal consequences.
Targets Senior Management.
Targets corporate liability, not the responsibility of
individual directors or others.
But individual prosecutions will continue to be possible
for existing offences.
The Act also applies to Government Departments and
other Crown bodes, as well as industry.
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Application to Crown
a) There is no general Crown Immunity
b) Public policy and exclusively public functions
see notes
are exempt
c) The Crown/ Public Sector bodies are to identified
d) Matters of national security exempt
e) Armed Forces combat and combat training are not a
relevant duty of care
Notes:
1. Exclusively public functions are those that require a particular legal
basis.
2. It is not appropriate for the courts to review decisions involving
competing public priorities or other questions of public policy.
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Corporate Manslaughter and Corporate
Homicide Act 2007
“It is not our intention to catch companies or others
making proper efforts to operate in a safe or
responsible fashion or where efforts have been
made to comply with health and safety legislation but
appropriate standards not quite met.”
“The proposals do not seek to make every breach of a
company’s common law and statutory duties
to ensure health and safety liable for prosecution under
the new offence.”
© McAleenan & McAleenan, 2007
Corporate Manslaughter and Corporate
Homicide Act 2007
1 The offence
(1) An organisation to which this section applies is
guilty of an offence if the way in which its activities
are managed or organised—
(a) causes a person’s death, and
(b) amounts to a gross breach of a relevant duty of
care owed by the organisation to the deceased.
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Corporate Manslaughter and Corporate
Homicide Act 2007
1 The offence
(3) 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).
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Starting Point
Was the death caused or contributed to by a gross
breach of relevant duty of care by the company?
First Limb of Offence
To satisfy the first element of the offence the breach has
to be classifiable as a failure in the way in which senior
management organises or manages the activities of the
organisation .
Second Limb of Offence
In order to satisfy the second element of the offence,
one has to show that conduct which caused the death
fell far below what can reasonably be expected of a
corporation in the circumstances.
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2. Relevant Duty of Care.
(1) A “relevant duty of care”, in relation to an organisation,
means any of the following duties owed by it under the law of
negligence—
(a) a duty owed to its employees or to other persons
working for the organisation or performing services for it;
(b) a duty owed as occupier of premises;
(c) a duty owed in connection with—
(i) the supply by the organisation of goods or services
(whether for consideration or not),
(ii) the carrying on by the organisation of any
construction or maintenance operations,
(iii) the carrying on by the organisation of any other
activity on a commercial basis, or
(iv) the use or keeping by the organisation of any
plant, vehicle or other thing;
(d) a duty owed to a person who, by reason of being a
person within subsection (2), is someone for whose safety
the organisation is responsible.
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Gross Breach of Duty. What is it?
“…conduct alleged to amount to a breach of that duty
falls far below what can reasonably be expected of the
organisation in the circumstances.”
It must first be established that an organisation owed a
relevant duty of care to a person.
Whether a particular organisation owes a duty of care
to a particular individual is a question of law on which
the judge must make any findings of fact in order to
decide that question.
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Gross Breach of Duty. What is it?
“…conduct alleged to amount to a breach of that duty
falls far below what can reasonably be expected of the
organisation in the circumstances.”
It is the task of the jury to then
•
decide if there was a gross breach of that duty, and
•
consider whether the evidence shows that the
organisation failed to comply with any relevant
health and safety legislation or guidance,
and if so;
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Gross Breach of Duty.
Duty
a) How serious was the failure to comply?
b) Whether or not senior managers;
•
knew (or should have known) that they were failing,
to comply with legislation and guidance
•
were aware (or ought to have been aware) of the
risk of death or serious harm posed by the failure to
comply
•
sought to cause the organisation to profit from the
failure.
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Gross Breach of Duty.
The jury may also
•
Consider the extent to which attitudes, policies,
systems or accepted practices within the
organisation encouraged or produced tolerance of
such failure, and
•
Have regard to any other matters that they consider
relevant
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Senior Managers – Who are they?
“the persons who play significant roles in making
decisions about how the whole or a substantial part of
the activities of the organisation are to be managed or
organised, or actually managing or organising those
activities.”
Significant Role (decisive, influential) - Board 
Making Management Decisions - Department Head 
Actually Managing - Operations Manager  Supervisor ?
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Penalties
a)
Fine
b)
Remedial Order
c)
Publicity Order
d)
Failure to comply with b) and c) will lead to
additional fines on conviction
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18. No Individual Liability
(1) An individual cannot be guilty of aiding, abetting,
counselling or procuring the commission of an
offence of corporate manslaughter.
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19. Convictions under this Act and H&S
Legislation
(1) Where in the same proceedings there is—
(a) a charge of corporate manslaughter or
corporate homicide arising out of a particular
set of circumstances, and
(b) a charge against the same defendant of a
health and safety offence arising out of some or
all of those circumstances,
the jury may, if the interests of justice so require,
be invited to return a verdict on each charge.
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19. Convictions under this Act and H&S
Legislation
(2) An organisation that has been convicted of
corporate manslaughter or corporate homicide
arising out of a particular set of circumstances
may, if the interests of justice so require, be
charged with a health and safety offence arising
out of some or all of those circumstances.
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Organisations best course of action;
Review and ensure compliance with systems and
procedures to manage their operations safely.
Questions to address
Are you sure that the systems are in place and sufficient
to
the occupational
safetymanagers
and health issues?
Is address
it reasonable
for senior
to know
the
actions of its lower level managers?
Are you sure that the systems are being consistently
complied with?
How can you be sure?
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Competence
Management System –
• Meets the requirements of H&S legislation
• Meets the needs of the business.
Level of H&S advice –
• Professional for design teams and senior managers
• Technical for operational matters
Employees have skills, knowledge, resources and
authority to act within their sphere of control and
influence.
Necessary functions
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Where to now?
Review and update operational safety procedures
Remove any superfluous procedures
Positive accident reduction management
Update design safety advice
Review and update H&S and Procurement approach
Establish effectiveness of controls assurance
through audit
through senior management intervention
External audit
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END
© McAleenan & McAleenan, 2007
KEY MEASURES
The new offence of corporate manslaughter, provides a more
effective sanction for holding companies and other organisations
to account when gross negligence in their senior management
has
had
fatal
consequences.
This will improve the effectiveness of the law by enabling a wider
range of senior management conduct to be taken into account
when
prosecuting
an
organisation
for
manslaughter.
This does not introduce new standards: organisations taking their
current health and safety obligations have nothing to fear. The
Act is intended to target corporate liability, as opposed to the
responsibility of individual directors or others. But individual
prosecutions will continue to be possible for existing offences.
The Act applies to Government Departments and other Crown
bodes, as well as industry, where both are engaged in similar
activities. But it would not apply to certain core public functions
or decisions relating to matters of public policy, that are subject
to existing lines of public accountability.
© McAleenan & McAleenan, 2007
Source: http://www.commonsleader.gov.uk/output/page979.asp
Vicarious Liability Theory
The expression “vicarious liability” signifies the liability
which the employer may incur as a result of the
wrongdoing of his employee.
Directing Mind and Will Theory
the mind and will of the senior directors and managers of
a company are the mind and will of the company itself:
where a particular offence is committed by a senior
director or manager of a company, the company itself is
deemed to have committed it.
Personal Liability Theory
It shall be the duty of every employer to conduct his
undertaking in such a way as to ensure, so far as is
reasonably practicable, that persons not in his
employment who may be affected thereby are not thereby
exposed to risks to their health and safety.
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