New provisions governing Corporate Manslaughter

New provisions governing Corporate Manslaughter

David Kirkpatrick considers some of the key provisions in the new draft Corporate Manslaughter Bill.

New provisions governing Corporate Manslaughter

The Government finally published its draft Corporate Manslaughter Bill for Northern Ireland in May of this year.

The idea behind the draft Bill is to secure a wider range of cases in which a conviction could be secured "for a specific serious criminal offence that properly reflects the gravity and consequences of the conduct involved". The new draft Bill attempts to achieve this by focusing on what the Government has identified as being currently wrong with the law, namely the need to find a very senior individual personally guilty of gross negligence/manslaughter, before the company could itself be convicted.

New Offence

The legislation proposes a new offence of Corporate Manslaughter which would be committed when the manner in which a company's activities are managed or organised by its senior managers causes a person's death and amounts to a gross breach of duty of care owed to the deceased.

The test to determine whether there has in fact been a gross breach of the duty of care is whether the failure in question constitutes conduct that falls far below what could reasonably be expected in the circumstances. In determining this issue, the Bill suggests that a Court will need to look at a range of factors, including:

• whether the company has failed to comply with the relevant Health & Safety legislation/guidance and, if so, how serious that failure was; and
• whether the senior managers were aware of, or should have been aware of, the failure, of the risk of death or of the serious harm posed by the failure and, also, whether the company sought to profit from that failure.

Senior Managers

The legislation defines senior managers as those playing a significant role in either making decisions about how the activities of the company (or a substantial part of it) should be run or in the actual managing organisation of the whole or a substantial part of the company's activities.

The main problem thrown up by the Bill will come in the Courtroom, in the event that the Bill passes into law. It will be for the Court to determine whether there is in fact a duty of care (and one assumes this is to the criminal standard, that is, beyond reasonable doubt (rather than the civil standard, on the balance of probabilities), although the draft Bill is not clear on this) and whether there has been a gross breach of that duty.

The new offence would apply to all companies and other types of incorporated bodies, including local authorities, and, for the first time, Government Departments. It is also worth noting that, under the draft legislation, a parent company (as well as any subsidiary) will be liable for prosecution where it owed a duty of care to the victim.

Sanctions

Only companies can be liable for the offence of Corporate Manslaughter, rather than individuals. The legislation provides for an unlimited fine in the event of conviction, rather than a term of imprisonment. The current highest fines for Health & Safety offences are £1.5m against GWT in respect of the Southall crash and £2m for Thames Trains after the Paddington rail disaster.

Risk Management

In the event that the draft Bill does become law, it would be worthwhile considering the following steps in order to reduce a company's exposure to the increased risk of prosecution under the legislation:

• ensure that the company complies with its general obligations under the relevant Health & Safety legislation and any industry sector specific safety regulations;
• consider introducing and implementing a system of delegated responsibility from Board level down to the workplace to ensure that employees have clearly defined areas of responsibility for Health & Safety;
• look at establishing a Safety Committee at Board level and appointing someone at Board level with overall responsibility for Health & Safety issues
• consider how to raise the consciousness of Health & Safety issues amongst employees, on a pro-active and not reactive basis; and
• ensure that there is a satisfactory system of maintaining records, monitoring and reporting up the chain of command.

Any interested parties have an opportunity to respond to the draft legislation by the closing date of the 25th August 2005.

David Kirkpatrick is a Partner in the firm's Litigation Department specialising in commercial litigation. He recently advised a corporate client in the transport sector on a charge of manslaughter.

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