Under the Corporate Manslaughter and Corporate Homicide Act 2007 (1), companies face unlimited fines and other penalties if found guilty of corporate manslaughter. It is currently possible to prosecute companies for the existing offence of manslaughter, but it will be far easier to convict under the Act. 

For a successful manslaughter conviction under the current law, the prosecution must prove that a director or senior manager – a ‘controlling mind’ – is guilty of manslaughter.  In practice, particularly in prosecutions of large companies, it can be very difficult to prove a convictable link between a death and the ‘controlling mind’.  One of the most notorious prosecutions to fail in this respect was that of P&O European Ferries following the sinking of the Herald of Free Enterprise.

The new offence means that organisations will be guilty of corporate manslaughter if there are ‘gross failures’ in the management of health and safety resulting in death.  A substantial part of this failure must be at ‘senior level’.  Senior level is defined as the people who make significant decisions about the organisation, or at least substantial parts of it.  This includes centralised headquarters functionaries as well as those in operational management roles.

The offence applies to all companies, corporate bodies, partnerships (if employers), government departments and police forces.  Courts will look at management systems and practices across the organisation, and if these structures cause a death which is shown to have resulted from ‘a gross breach of duty of care’ to the deceased, then the organisation will be considered guilty.  The organisation’s conduct will have to have fallen far below what could be reasonably expected; juries will have to take into account any health and safety breaches, and how serious and dangerous they were.

While individuals can’t be prosecuted for the new offence, they can still be prosecuted for the existing offence of gross negligence manslaughter/culpable homicide for health and safety offences.

For instance, two businessmen were sentenced to nine and 12 months imprisonment respectively in July 2007 following the death of a 28-year-old man in a concrete manufacturing machine.  Unusually, the company employing them was also found guilty of manslaughter and ordered to pay a £75,000 fine.

Penalties for the offence
If found guilty of corporate manslaughter, an organisation can face an unlimited fine. This is likely to be high, as Ministry of Justice guidance (2) on the act suggests; it refers to the record £15m fine Transco received in 2005 following a fatal explosion.  “Fines on this scale, and even higher, are of the sort that we would expect to see for corporate manslaughter”, it says.

The Sentencing Advisory Panel is currently consulting on the level of fines (3). It suggests that the starting point for a fine for corporate manslaughter committed by a first-time offender pleading not guilty, should be five per cent of their average annual turnover for the three years prior to sentencing.

The court should then take into account any aggravating or mitigating circumstances, arriving at a fine which should normally fall between 2.5 to ten per cent of turnover.  It may also be appropriate to set a minimum fine for corporate manslaughter or for offences under the HSWA involving death, in order to ensure that the harm involved in such offences is properly reflected in the sentence, the Panel says. 

Courts are also authorised to appoint a remedial order, which would require the guilty party to address the cause of the fatal injury.  This is less likely, as the relevant regulator will have been involved in the case.  Additionally, courts can require those convicted to advertise their conviction, specifying particulars of the offence, any fine imposed and the terms of any remedial order made.  This measure is likely to come into force in autumn 2008. 

The Sentencing Advisory Panel believes that this sanction could exceed the force of any fine, as it could impact on the public reputation of an organisation, and damage consumer confidence, market share or equity value.  The Panel says that its provisional view, in principle, is that a publicity order should be imposed on every offender convicted of corporate manslaughter. Options for the order include:

• publication on television/radio and/or in a local/national/trade newspaper including relevant broadcaster/newspaper websites;
• publication on the organisation’s website and in its annual report, informing (potential) customers and those who might be interested in investing in the organisation;
• a notice to shareholders; and
• letters to customers and/or suppliers of the organisations.

Aside from the very negative effect on image this would have, the knock-on effects could well include potential withdrawal of investment, difficulty in attracting contracts or problems finding good staff.

The key to avoiding prosecution is simply to ensure that your organisation is following the relevant health and safety legislation and good practice guidance.  Justice Minister Maria Eagle MP made this clear speaking at the CBI Corporate Manslaughter Conference in October.

She said: “This law will ensure that there is proper accountability when very serious management failings lead to people being killed. This is not about over-regulation. Businesses should see this as an opportunity to make sure they have proper arrangements in place for managing health and safety.”

For most health and safety managers there shouldn’t be any additional requirements – but the new law does provide an added incentive to get health and safety taken seriously.  This is particularly the case for those working in organisations that make it a lower priority – health and safety managers should make sure that their employer, particularly at senior management level, is clear on the effect a manslaughter conviction will have.

Employers are required to manage risks under section 2(1) of the Health and Safety at Work Act 1974. This requires employers ‘to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees’.  Regulation 3 of the Management of Health and Safety at Work Regulations 1999 requires employers to make ‘suitable and sufficient assessment’ of risks. While these are not new requirements, the new Act is an opportunity to take a fresh look at how risk is being managed in the organisation.

Recent guidance from the Institute of Directors and Health and Safety Commission (4) provides some useful pointers. The guidance suggests that the board:

• should plan its health and safety, including agreeing a policy and understanding the issues involved;
• must deliver on this policy, which means ensuring that health and safety arrangements are adequately resourced and that competent health and safety advice is obtained;
• should monitor health and safety, including ensuring that appropriate weight is given to reporting both preventive information and incident data, and carrying out periodic audits of the effectiveness of management structures and risk controls;.

The Ministry of Justice guidance on the Act says that factors that may be considered when investigating senior management failure will include systems of work used by employees, levels of training and adequacy of equipment, and issues of immediate supervision and middle management.

A company’s strategic approach to health and safety could also be investigated, as well as its arrangements for assessing risk, monitoring and auditing its processes.  Investigations will not just look at formal systems for managing an activity, but how in practice it was carried out.

Making sure that staff are correctly trained in health and safety will be one key factor.  This is likely to be driven by risk assessments and is the key to ensuring health and safety standards are met, maintained and communicated.

Organisations which ignore the new offence of corporate manslaughter will do so at their peril – the powers it affords the courts are substantial.  It definitely provides a great way of attracting the attention of senior management by flagging the detail of the offence.  Safety managers should use the change in law as an opportunity to review the way they manage health and safety.

Safety Media specialises in safety training products, including E-Learning, software and DVDs.  It recently issued a free manslaughter information pack and an online tool that allows firms to assess their safety culture. 

For details see Safety Media's corporate manslaughter act training products

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You can also request a comprehensive corporate manslaughter act information pack delivereed to you

1 Corporate Manslaughter and Corporate Homicide Act 2007
2 A guide to the Corporate Manslaughter and Corporate Homicide Act 2007’, Ministry of Justice, October 2007
3 Sentencing Guidelines
4 health and safety at work’ (INDG 417) HSC and IoD

• The Act applies to companies incorporated under companies legislation or overseas; other corporations; all other partnerships, and trade union’s and employer’s associations if the organisation concerned is an employer; Crown bodies such as government departments; the police
• Parent companies cannot be convicted for a subsidiary’s failure – subsidiaries are separate legal entities and subject to the offence separately
• Sub-contractors may be liable for the new offence depending on whether they owed a relevant duty of care to the victim
• A duty of care is an obligation on an organisation to take reasonable steps to protect a person’s safety, for example employer and occupier duties; duties connected to supplying goods and services, commercial activities, construction and maintenance work, using or keeping plant, vehicles or other things (duties relating to holding a person in custody)
• The judge will decide if a duty of care is owed
• The defences of consent and joint illegal enterprise that are available in tort claims are specifically excluded
• Some comprehensive exemptions exist for public policy decisions, military combat operations, and police operations dealing with terrorism and violent disorder
• Some partial exemptions exist for policing and law enforcement activities, emergency response, statutory inspection work, child protection functions or probation activities

• How do you demonstrate the board’s commitment to health and safety?
• What do you do to ensure appropriate board-level review of health and safety?
• What have you done to ensure your organisation, at all levels including the board, receives competent health and safety advice?
• How are you ensuring all staff - including the board - are sufficiently trained and competent in their health and safety responsibilities?
• How confident are you that your workforce, particularly safety representatives, are consulted properly on health and safety matters, and that their concerns are reaching the appropriate level including, as necessary, the board?
• What systems are in place to ensure your organisation’s risks are assessed, and that sensible control measures are established and maintained?
• How well do you know what is happening on the ground, and what audits or assessments are undertaken to inform you about what your organisation and contractors actually do?
• What information does the board receive regularly about health and safety - e.g. performance data and reports on injuries and work-related ill health?
• What targets have you set to improve health and safety and do you benchmark your performance against others in your sector or beyond?

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