The death penalty

The Home Office’s consultation on the draft Corporate Manslaughter Bill is now closed. The likelihood is that the bill – after some fine-tuning as a result of that consultation – will be introduced in the next parliamentary session.

The draft bill now focuses on the culpability of an organisation. An organisation will be guilty of corporate manslaughter where the conduct of senior managers amounted to a gross breach of their duty to the person killed. Such conduct would involve behaviour “falling far below what can reasonably be expected of the organisation in the circumstances”.

The new offence of corporate manslaughter would deal with an unfairness in our law: that small businesses can be successfully prosecuted for the crime of corporate manslaughter in circumstances where a prosecution would not succeed against a larger organisation because of the difficulty of establishing its “directing mind”.

There are, however, a few problems with the draft bill. The prosecution has to prove that some or all of the organisation’s senior managers played a “significant role” in managing the organisation’s activities or in the making of decisions as to how such activities were to be managed. This provides ample scope for argument on the actual role played by individual managers and it seems to detract from an examination of the overall way that the organisation managed its risk profile. The prosecution should only have to prove that, collectively, senior management initiated, planned or managed those systems, processes and activities that caused a person’s death.

The bill states that individuals cannot be guilty of aiding, abetting, counselling or procuring an offence of manslaughter. However, it should be made clear that organisations can be so guilty. Let’s take an example. Say company A engages company B to carry out certain construction work. Company A knows company B’s management is poor and that it has an appalling health and safety record. Company A turns a blind eye to this and engages company B on the basis that its price is low. During construction there is an accident on site resulting in the death of a workman employed by one of company B’s subcontractors. In these circumstances, company A should be prosecuted for having aided and abetted company B’s breach of duty.

In this situation there may, of course, be cases where company A will be guilty of corporate manslaughter where it also had a management role in relation to company B. This would occur, for example, where a principal contractor on the construction site is responsible for engaging subcontractors and for providing overall management of their activities while on site.

Failure by an organisation to belong to a registration or qualification scheme in the industry may be a factor that a jury should take into account

In determining whether there has been the requisite failure of management, the jury must consider whether the evidence shows that senior managers caused the organisation to profit from that failure. The reason for including the reference to profit is not clear. Serious accidents are often the result of incompetence rather than a deliberate policy on the part of the organisation to put profits before the safety of employees and members of the public. This, therefore, should not be a matter that is relevant to the issue of guilt; the extent to which a company profited would be a relevant matter for sentencing.

In considering the conduct of management, the jury is entitled to take into account compliance – or rather lack of it – with health and safety regulations and guidance. However, a failure by an organisation to belong to an established registration or qualification scheme in the industry could be a factor that a jury should take into account provided that the relevant scheme audits its firms for health and safety purposes.

In addition to imposing fines on organisations, the court can order an organisation to take steps to remedy those failings in management that led to the death. If an organisation fails to take these steps, further fines can be imposed. Perhaps, this should be the occasion when directors can be disqualified.

In most situations where deaths have occurred, the prosecution authorities have been able to use – to great effect – section three of the Health and Safety at Work Act. Section three places a duty on every employer to conduct his business in such as way as to ensure, so far as reasonably practicable, that persons not in his employment are not exposed to health and safety risks occasioned by his operations.

But if corporate manslaughter legislation helps to improve corporate competence generally, it will have provided a significant benefit.