It’s now just over 10 years since the Corporate Manslaughter and Corporate Homicide Act 2007 (The 2007 Act) became law. Despite the fact that over 13,000 work-related deaths are recorded annually in the UK (mostly due to ill health), there have so far been only 26 convictions of companies under the 2007 Act. But is this figure set to rise?
The regulatory impact assessment for the 2007 Act estimated that “…the proposals would lead to a possible 10-13 extra prosecutions per year for corporate manslaughter”. It is therefore surprising that conviction rates have been so low. This may be partly because the 2007 Act is not retrospective – it can only be used in cases where (1) the harm resulting in the death took place on or after 6 April 2008, and (2) anything done or omitted must also take place after that date.
As time passes there will be less doubt over whether the above two conditions apply, so an increase in the rate of prosecutions is foreseeable.
One case that may be in the pipeline arises out of the Grenfell Tower disaster in which over 70 people lost their lives. While no firm decision to prosecute has yet been taken, press coverage suggests that organisations like the Royal Borough of Kensington and Chelsea and the Kensington and Chelsea Tenancy Management Organisation could face charges. It is for this type of tragic event, involving large organisations, that the Corporate Manslaughter and Corporate Homicide Act was created. To date, there have been no prosecutions of large organisations under the 2007 Act, so any prosecution that may be taken will likely be the largest so far and could yield a record fine.
An organisation can be found guilty under the 2007 Act if the way in which its activities are managed or organised is the cause of a person’s death and amounts to a gross breach of a relevant duty of care. In addition, “an organisation is guilty of an offence […] only if the way in which its activities are managed or organised by its senior management is a substantial element of the breach…”
Some important points to note:
- The Corporate Manslaughter and Corporate Homicide Act applies only to organisations; there is no individual liability.
- The ‘Relevant duty of care’ includes such things as the duty of an employer to its employees, the duties of occupiers to visitors and a duty owed in connection with the supply of goods or services or any other commercial activity.
- A ‘gross breach’ is a breach that falls far below the standard to be expected in the circumstances. If this cannot be shown then a prosecution under the Health and Safety at Work Act 1974 is still possible; this can still result in an unlimited fine.
- In the ‘senior management’ test, it is not necessary to identify specific individuals. However, if those individuals can be identified, and they are considered blameworthy, then they may be prosecuted for manslaughter contrary to the common law.
Guidelines introduced in 2016 require the courts to consider a number of factors when deciding on an appropriate level of fine. The guidelines envisage fines of up to £20 Million, with a starting point of £7.5 Million for large organisations with a high level of culpability. Even for very small organisations (turnover/revenue less than £2 Million) with a relatively low level of culpability, the fine can still be up to £540,000 with a starting point for consideration of £300,000.
After a long period of relatively static fines, cases decided since the introduction of the sentencing guidelines (e.g. Martinisation, who were fined £1.2 Million in May 2017 for the death of two workers in a fall from height) suggest a marked increase. With the sentencing guidelines providing greater clarity, it is considered likely that fines for this offence will continue to increase.
A fine is not the only penalty available to the courts. Also available are remedial orders, which require the defendant organisation to rectify the problem that caused the death, and, most notably, a publicity order. The court can order a convicted company to publicise (e.g. in the press, trade journals etc):
- the fact that it has been convicted,
- specific particulars of the offence,
- the amount of any fine imposed, and
- the terms of any remedial order made.
Since most organisations rely on their reputation for future business, the effect of such an order on their long-term prospects cannot be under-estimated.
The Corporate Manslaughter and Corporate Homicide Act sits alongside existing Health and Safety legislation to provide another string to the prosecutor’s bow in cases where a death arises and an organisation is thought to be responsible. In the event of such a tragedy, organisations will need to show evidence that their activities were managed or organised to an appropriate standard so that there can be less chance of any allegation of a breach of a relevant duty of care. Organisations will benefit from having in place robust safety management arrangements as well as from knowing what juries are asked to consider when deciding on their verdict.
Our 2-hour training course, led by former barrister Andrew Ashford, will help your organisation understand the issues raised by the 2007 Act and will help you to plan to improve your arrangements for managing safely so as to help avoid prosecution. Contact us for further details.