3.3 Corporate Manslaughter and Corporate Homicide Act 2007
Reform has now come in the form of the 2007 Act, which creates a statutory, specific offence of ‘corporate manslaughter’. A corporation, be it a company, government department or other Crown body, will be liable to face prosecution where a gross failing by its senior managers to take reasonable care for the safety of their workers or other individuals causes death.
This statutory offence is premised on a number of concepts previously established under the common law, such as liability arising through the breach of a duty of care owed by the organisation under the operation of the law of negligence. The offence of corporate manslaughter is designed to complement, rather than replace, existing health and safety offences, for which an organisation may still be prosecuted as an alternative to, or in addition to, the new offence. Also, individuals within the organisation may still face separate prosecutions for the common law crime of gross negligence manslaughter.
In this section you will consider the changes brought about by the 2007 Act in more detail.
This activity is intended to give you an insight into how the 2007 Act applies.
On a computer access the.
Once you have done this, read Case study 1 and answer the question set out below.
Case study 1: Stonebrick Ltd
Conran Smith, a junior surveyor employed by Stonebrick Ltd, a national firm of property developers, was required to inspect the building work undertaken on the conversion of an eighteenth-century mill house into apartments. Unknown to him, the area manager, James Henry, had raised concerns about the quality of the work undertaken, in particular the failure to replace the rotten roof trusses. He had sent a report on the issue to Josef Schmann, the managing director responsible for operations and site safety. However, Schmann was on long-term sick leave after a heart attack and the three other managing directors of the company had not taken on his responsibilities. As a consequence, James Henry’s report lay unread on Schmann’s desk.
The foreman of the mill conversion, Winston Green, was aware of Henry’s concerns and he had asked the building team to prevent access to the roof space until the matter was resolved. However, Green did not check to ensure that his instructions had been carried out. If he had, he would have found that the barrier had not yet been constructed. Green was on his lunch break at the time of Smith’s visit and so the latter was not made aware of the potential danger. As a consequence, when Smith climbed into the roof space to inspect the insulation, the roof trusses collapsed, causing him to fall through to the next floor and to sustain fatal injuries.
Explain when an organisation such as Stonebrick Ltd will be guilty of an offence of corporate manslaughter under the 2007 Act.
An organisation will be guilty of an offence under section 1(1) if the way in which its activities are managed or organised causes a person’s death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
There are several aspects to this:
- Section 1(3) stipulates that in order for an offence to be committed under section 1(1) the way in which the senior management has managed or organised the activities of the organisation must be a substantial element of the breach.
- ‘Senior management’ is defined in section 1(4)(c) as persons who play significant roles in the making of decisions about how the whole or a substantial part of its activities was to be managed or organised, or the actual managing or organising of the whole or a substantial part of its activities.
- The relevant duty of care is defined in section 2(1) and includes the duties owed by organisations under the law of negligence, so it covers duties owed to employees and people working for the organisation, the duties owed by occupiers of premises and duties owed in connection with certain specific activities such as construction and maintenance operations.
- The breach of this duty must be ‘gross’ as defined in section 1(4)(b), which means that the conduct must fall far below what can reasonably be expected of the organisation in the circumstances. This is a factor to be determined by the jury and section 8 sets out the factors to be taken into account. They must consider whether the evidence shows that the organisation failed to comply with any health and safety legislation that relates to the alleged breach and, if so, how serious that failure was and how much of a risk of death it posed.
- The jury may also consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure or to have produced tolerance of it and they must have regard to any health and safety guidance that relates to the alleged breach.
- In the case of Stonebrick Ltd, the prosecution will look at the role of the directors and any other managers responsible for the working practices which led to Smith’s death. The managing directors failed to take responsibility for Schmann’s health and safety role in his absence. This would seem to be a sufficiently serious breach under the guidance provided by section 8 to be likely to amount to a contravention of the Act.
- James Henry, the area manager, did attempt to alert the relevant managing director, but arguably he should have done more to ensure that adequate measures were taken to prevent access to the dangerous area and to warn of the danger on the site. He may be sufficiently senior in the organisation to be considered as senior management for the purposes of section 1. Green, the site foreman, was responsible for health and safety on the site and did instruct his workmen to erect a suitable barrier, but failed to ensure that his instructions were carried out. It is unlikely that Green’s failures would be regarded as those of ‘senior management’ for the purposes of section 1.
There is evidence that the recent legislative intervention has given rise to a change in the culture of the way that investigations and prosecutions are undertaken following a death in the corporate context. Recent experience shows that investigators and prosecutors are willing to deploy the full range of applicable criminal offences against both organisations and individuals following a fatal accident (Bastable and Matthews, 2010).
It is difficult to predict the effectiveness of the reform. It may be that one of its greatest achievements will be to highlight the debate concerning the nature of corporate accountability for industrial incidents. At the time of writing there have been three convictions for corporate manslaughter under the 2007 Act.