Law sidesteps thorny issue of prosecution for individuals

Apr 9 2008 by Jonathan Dunkley for The Journal

MORE than 20 years after a major maritime disaster, a new Corporate Manslaughter Act has been introduced. Jonathan Dunkley, partner with commercial law firm Muckle LLP, looks at the implications.

ALMOST 200 passengers and crew of the Herald of Free Enterprise died on March 6, 1987, after the ferry capsized as a result of criminal acts and gross negligence throughout the operating company.

Over the next decade there were a series of further disasters, all involving significant loss of life and all caused by management failure and criminal neglect.

Confidence in the deterrent effect of the Health & Safety at Work Act 1974 evaporated as prosecutions for manslaughter collapsed in each case.

A Law Commission Report in 1996 indicated a determination to tackle this and redress a growing perception that killers in smart suits were being allowed to “get away with it”.

So almost 21 years to the day after the Herald of Free Enterprise tragedy, the Corporate Manslaughter and Corporate Homicide Act 2007 came into force on Sunday.

The new offence only applies to organisations, including companies, partnerships, trade unions and employers’ associations and certain government departments and public bodies, as well as the police force. It does not apply to individuals, such as company directors or managers, who will continue to be subject to the common law offence of manslaughter by gross negligence.

The Act sets out a new offence for convicting an organisation where a gross failure in the way activities were managed or organised results in a person’s death. It sets out an entirely new approach, under which courts will look at management systems and practices across the organisation, providing a more effective means for prosecuting the worst corporate failures to manage health and safety properly.

If an organisation’s conduct has “fallen far below what could have been reasonably expected” and if the failure is “at a senior level” then a jury is likely to convict that organisation of corporate manslaughter.

An organisation guilty of such an offence will be liable to an unlimited fine, a publicity order, requiring it to publicise details of its conviction and fine, and also a remedial order, to address any failures that lead to the death.

All employers must continue to comply with Health and Safety legislation, and the Act does not affect those requirements. However, the introduction of the new offence requires employers to satisfy themselves that the systems and processes for managing health and safety are adequate and effective, and are regularly revisited and developed.

For guidance on health and safety duties, and how to meet them, employers should contact their professional advisers or relevant regulatory authority. Many commentators will be disappointed that, after 21 years, the new Act focuses solely on corporate responsibility, and side-steps any attempt to review the basis upon which individuals can be prosecuted for gross negligence which leads to death in the workplace, despite many lobby groups suggesting that safety standards in the workplace will not improve until such time as directors’ personal exposure to prosecution is reviewed.

A conviction for corporate killing will itself be terminal for many companies. After all, who will want to work for them, do business with them, or invest in them? And how many tenders will they be likely to win?

But many pressure groups continue to suggest that any real improvement in standards of health and safety generally will not be achieved until such time as directors’ personal responsibility for breaches of health and safety is refocused and increased.