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Abe
29-12-2007, 12:58 AM
Health and Safety

Key Points

• CMCHA 2007 introduces a new statutory offence of 'corporate manslaughter'

• The offence depends on collective failures of senior management

• Sanctions include fines, remedial orders and publicity orders

• CMCHA 2007 comes into force on 6 April 2008
Test to be applied

An 'organisation' will be guilty of corporate manslaughter if the way in which its activities are managed or or-ganised:

• cause a person's death;

• amount to a 'gross breach' of a relevant duty of care owed by the organisation to the de-ceased; and

• the way in which its activities are managed or organised by its senior management is a 'substantial element' of the breach.

Who does the CMCHA 2007 apply to?

For these purposes, the Act includes companies and partnerships, government departments, trade unions, schools and the police force (s 11 abolishing Crown immunity (with limited exceptions)), making clear that government departments are not to be treated as agents or servants of the Crown.
The CMCHA 2007 does not apply to individuals, or to UK businesses abroad. Government bodies are also afforded protection by matters of public policy and by certain actions in the exercise of a public function.

The relevant duty of care

The CMCHA 2007 does not create new duties where they are not currently owed. Rather, it simply creates circumstances in which the breach of an existing duty of care will constitute a criminal offence. The organisa-tion must have owed one of the following duties of care to the deceased under the law of negligence:

• a duty as an employer; or

• a duty as occupier of premises; or

• a duty owed in connection with the supply of goods and services, the carrying on of con-struction or maintenance operations, the carrying on of any other activity on a commercial basis or the keeping of any plant, vehicle or other thing.

The duty is usually owed at common law, but in certain circumstances, these duties have been replaced with statutory provision. The CMCHA 2007 builds on the existing health and safety legislation, therefore, so that where such duties are owed, for example under the CDM Regulations or the Health and Safety at Work etc Act 1974 ('HSWA 1974'), breach of them can trigger the offence (subject to satisfaction of the senior man-agement tests).
On a construction site, a breach by a developer of obligations to its contractor will be relevant, as will obliga-tions owed by the contractor to its own employees and sub-contractors.

A 'gross' breach of duty

The second element of the offence is that the breach of the duty of care must be gross; that is to say it must fall far below what can reasonably be expected of the organisation in the circumstances (thereby applying the current common law test for gross negligence manslaughter). In determining this, the jury may consider any relevant matter, but in particular the jury must consider the failure to comply with any health and safety legislation, the seriousness of that failure and how much of a risk of death that failure posed.
The jury may also consider the safety culture of the organisation; whether the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have en-couraged health and safety failings or produced tolerance of them.

Who is senior management?

An organisation is guilty of corporate manslaughter under CMCHA 2007 only if the way in which the organi-sation was managed or organised by 'senior management' was a substantial element of the breach of duty of care by the company. For these purposes, senior management means the people who play significant roles in the making of decisions about how to organise or manage, or who actually manage or organise a substan-tial part of an organisation's activities. In a construction context, this may well be construed as extending to site managers on large projects, as well as board directors and senior officers.
There has been some speculation as to whether or not senior managers could evade liability under the CMCHA 2007 by delegating health and safety responsibilities to junior managers, but this seems unlikely as a lack of involvement in health and safety at senior level will leave the organisation exposed to the risk of prosecution.

Causation

In terms of causation, the senior management failure must have caused the death, although it need not be the sole cause. The management failure must make more than a minimal contribution to the death, and there must be no intervening act to break the chain of causation.

Sanctions under CMCHA 2007

Where a work related fatality has occurred, companies will face an unlimited fine under the Act. A court can also make a remedial order, requiring the company to take specified steps to remedy the breach or any per-ceived deficiency in policies, systems or practices or a publicity order, and setting out detailed requirements to publicise the conviction, the fine and the terms of any remedial order. The publicity order is seen by many as the key deterrent under the new legislation, given the damage that it could do to the reputation of an or-ganisation.
Directors cannot be found guilty of aiding, abetting or procuring the offence of corporate manslaughter or homicide, largely because of fears that this would make it difficult to recruit directors in high risk industries such as construction (see CMCHA 2007, s 18). Individuals can, however, still be charged with manslaughter under existing law.


In a construction context, this should mean that developers and main contractors, as well as sub-contractors and sole traders are called to account under CMCHA 2007. It ought to also lead to better supervision and regulation of transient construction workers who come to work in the UK from mainland Europe and beyond. What steps should you take to protect your organisation?

• Identify your senior management.

• Review the relevant Health and Safety Guidance (including the CDM Regulations 2007 ap-plicable to your business).

• Establish what industry standards should be applied and ensure that your organisation at least meets the required standards.

• Compare policy and procedure documents to actual practice.

• Assess and if necessary improve your health and safety culture with regard to health and safety compliance.

• Keep risk assessments up to date.

• Consider whether or not training for senior management is required.

• Increase board level review of health and safety compliance.

• Insurance: note that fines cannot ordinarily be insured against. Consider whether or not cover is adequate for the costs of defending such a prosecution.

Brian_UK
29-12-2007, 01:04 AM
Thanks Abe, that makes happy reading :)

but, as the man said "Not knowing is no excuse"

taz24
29-12-2007, 02:12 AM
Health and Safety

Government bodies are also afforded protection by matters of public policy and by certain actions in the exercise of a public function.



If this is the case why were the MET Police force hauled over the coals for the shooting of the Brazilian on the tube?


Cheers taz.

Abe
29-12-2007, 11:36 AM
If this is the case why were the MET Police force hauled over the coals for the shooting of the Brazilian on the tube?


Cheers taz.

Me thinks that was not a Health and Safety issue, more a Police Disciplinary matter......

Argus
29-12-2007, 12:23 PM
.

An Interesting Post Abe - We should point that it is UK domestic law that we are talking about here. It has no jurisdiction outside the UK, though other countries may have similar laws.

There have been a few notable cases here over recent times where the CPS (Crown Prosecutors) has failed to secure an indictment in this area. But it was always in the pipeline and can’t be ignored.



Me thinks that was not a Health and Safety issue, more a Police Disciplinary matter......



If this is the case why were the MET Police force hauled over the coals for the shooting of the Brazilian on the tube?


Cheers taz.

I believe that the Metropolitan police were recently convicted under the Health and Safety regulations in the de Menezes shooting at Stockwell in relation to the health and safety of the public at the scene.
http://news.bbc.co.uk/1/hi/uk/7069796.stm


.

Abe
29-12-2007, 10:31 PM
.

An Interesting Post Abe - We should point that it is UK domestic law that we are talking about here. It has no jurisdiction outside the UK, though other countries may have similar laws.

There have been a few notable cases here over recent times where the CPS (Crown Prosecutors) has failed to secure an indictment in this area. But it was always in the pipeline and can’t be ignored.

I believe that the Metropolitan police were recently convicted under the Health and Safety regulations in the de Menezes shooting at Stockwell in relation to the health and safety of the public at the scene.
http://news.bbc.co.uk/1/hi/uk/7069796.stm


.

Argus

I stand corrected. I dont know about the Met issue, this legislation only comes into force April 08, and Im not really intrested about the Met as this is not a political forum.

The intent was to raise awareness and how it will impact business owners and employees similarly, and the importance of ensuring that the potential for accidents occurring are minimised.

Our industry does employ practices and materials which have the capacity for harm, use of oxy acetelyne for instance where it causes a fire and burns down a building, ammonia leakage leading to suffocation,are a few examples i can come up with.

Management in the future will be found criminally liable in this case, so the necessity to incorporate further safety practices cannot be emphasised.

I appreciate many HVAC business owners frequent these pages, perhaps this will be noteworthy for them.

Regards