On 6 April 2008 most of the long-awaited Corporate Manslaughter and Corporate Homicide Act 2007 comes into force. The Act establishes a new statutory offence of corporate manslaughter (corporate culpable homicide in Scotland).

An organisation is guilty of the offence if the way in which it manages or organises its activities causes a death and amounts to a gross breach of a relevant duty of care to the deceased. A substantial part of the breach must have been in the way activities were managed by the senior management of the organisation.

The new offence builds on the responsibilities that employers and organisations already owe to their employees and members of the general public, with regard to the premises they occupy and the activities they carry out.

Previously, an organisation could only be convicted of manslaughter if a ‘directing mind’ – i.e. a senior manager or director – was also personally liable. However, this did not reflect the reality of the way decisions are made in large organisations and there were very few prosecutions as a result. The new offence is concerned with the corporate liability of the organisation itself, allowing this to be assessed on a wider basis and providing greater accountability for serious management failings across the organisation. It will continue to be possible to bring prosecutions for gross negligence manslaughter against individuals, where there is sufficient evidence and it is in the public interest to do so.

When determining whether an organisation is guilty of the new offence of corporate manslaughter, the courts will look at management systems and practices across the organisation and whether an adequate standard of care was applied to the fatal activity. Juries will be required to consider the extent to which an organisation was in breach of its health and safety requirements and how serious those failings were. They will be able to consider the culture that exists within an organisation regarding health and safety issues. Lax management attitudes that result in a lower standard of care than could reasonably be expected will be punished.

An organisation convicted of the new offence may receive:

• an unlimited fine;
• a publicity order requiring an organisation to publicise its conviction and certain details of the offence; and
• a remedial order requiring the organisation to address the cause of the fatal injury.

Employers are advised to keep their procedures under review, especially those with direct health and safety implications. Successful defences to charges of corporate manslaughter will inevitably depend on being able to prove that the organisation takes a responsible attitude to health and safety, with appropriate risk management procedures in place that are enforced rigorously. We would also advise that you check your insurance policies in the light of the new law.

For individual advice on the implications of the Act for your business, contact Yair Cohen.

This publication contains information which is intended for general guidance only. The information is provided in a concise form and is not substitute for obtaining legal advice. If you would like advice specific to your circumstances, please contact us.