Corporate Manslaughter And Corporate Homicide Act 2007 Perspective Philip and Ciaran McAleenan © McAleenan & McAleenan, 2007

Zeebrugge 1987, (192 deaths) “…from top to bottom the body corporate was infected with the disease of sloppiness…. The failure on the part of the shore management to give proper and clear directions was a contributory cause of the disaster.” Piper Alpha Oil Platform 1988, (167 deaths) “The cause was said to be a combination of “mundane design faults, human error and unsafe working conditions.” Clapham Rail Crash 1988, (35 deaths) “…emphasized how senior management failures provided the context of this error; supervisory mechanisms did not work; there was no instruction, training or checking of the technician’s work, and there were high levels of understaffing.” © McAleenan & McAleenan, 2007

Manslaughter by Gross Negligence Was a duty of care owed to the deceased? Was that duty of care to the deceased breached? Did the breach of the duty of care cause or contribute to the death of the deceased? If the breach of the duty of care caused or contributed to the death of the deceased, should the breach of duty be characterised as gross negligence and therefore as a crime? Corporate Liability for Manslaughter “….the identification principle remains the only basis in common law for corporate liability for gross negligence manslaughter”. Source: Lord Justice Rose in Attorney General’s Reference No 2 of 1999Attorney General’s Reference No 2 of 1999 © McAleenan & McAleenan, 2007

Holds organisations to account when a gross breach of a relevant duty in they way its activities are managed or organised has had fatal consequences. Targets Senior Management. Targets corporate liability, not the responsibility of individual directors or others. But individual prosecutions will continue to be possible for existing offences. The Act also applies to Government Departments and other Crown bodes, as well as industry. Corporate Manslaughter and Corporate Homicide Act 2007

Application to Crown a)There is no general Crown Immunity b)Public policy and exclusively public functions see notes are exempt c)The Crown/ Public Sector bodies are to identified d)Matters of national security exempt e)Armed Forces combat and combat training are not a relevant duty of care Notes: 1.Exclusively public functions are those that require a particular legal basis. 2.It is not appropriate for the courts to review decisions involving competing public priorities or other questions of public policy. © McAleenan & McAleenan, 2007

“It is not our intention to catch companies or others making proper efforts to operate in a safe or responsible fashion or where efforts have been made to comply with health and safety legislation but appropriate standards not quite met.” “The proposals do not seek to make every breach of a company’s common law and statutory duties to ensure health and safety liable for prosecution under the new offence.” Corporate Manslaughter and Corporate Homicide Act 2007 © McAleenan & McAleenan, 2007

Corporate Manslaughter and Corporate Homicide Act 2007 © McAleenan & McAleenan, The offence (1) An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised— (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

1 The offence (3) An organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1). Corporate Manslaughter and Corporate Homicide Act 2007 © McAleenan & McAleenan, 2007

Starting Point Was the death caused or contributed to by a gross breach of relevant duty of care by the company? First Limb of Offence To satisfy the first element of the offence the breach has to be classifiable as a failure in the way in which senior management organises or manages the activities of the organisation. Second Limb of Offence In order to satisfy the second element of the offence, one has to show that conduct which caused the death fell far below what can reasonably be expected of a corporation in the circumstances. © McAleenan & McAleenan, 2007

2. Relevant Duty of Care. (1) A “relevant duty of care”, in relation to an organisation, means any of the following duties owed by it under the law of negligence— (a) a duty owed to its employees or to other persons working for the organisation or performing services for it; (b) a duty owed as occupier of premises; (c) a duty owed in connection with— (i) the supply by the organisation of goods or services (whether for consideration or not), (ii) the carrying on by the organisation of any construction or maintenance operations, (iii) the carrying on by the organisation of any other activity on a commercial basis, or (iv) the use or keeping by the organisation of any plant, vehicle or other thing; (d) a duty owed to a person who, by reason of being a person within subsection (2), is someone for whose safety the organisation is responsible. © McAleenan & McAleenan, 2007

Gross Breach of Duty. What is it? “…conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances.” It must first be established that an organisation owed a relevant duty of care to a person. Gross Breach of Duty. © McAleenan & McAleenan, 2007 Whether a particular organisation owes a duty of care to a particular individual is a question of law on which the judge must make any findings of fact in order to decide that question.

Gross Breach of Duty. What is it? “…conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances.” It is the task of the jury to then decide if there was a gross breach of that duty, and consider whether the evidence shows that the organisation failed to comply with any relevant health and safety legislation or guidance, and if so; Gross Breach of Duty. © McAleenan & McAleenan, 2007

Gross Breach of DutyGross Breach of Duty. a)How serious was the failure to comply? b)Whether or not senior managers; knew (or should have known) that they were failing, to comply with legislation and guidance were aware (or ought to have been aware) of the risk of death or serious harm posed by the failure to comply sought to cause the organisation to profit from the failure. © McAleenan & McAleenan, 2007

Gross Breach of Duty. The jury may also Consider the extent to which attitudes, policies, systems or accepted practices within the organisation encouraged or produced tolerance of such failure, and Have regard to any other matters that they consider relevant Gross Breach of Duty. © McAleenan & McAleenan, 2007

“the persons who play significant roles in making decisions about how the whole or a substantial part of the activities of the organisation are to be managed or organised, or actually managing or organising those activities.” Significant Role (decisive, influential) - Making Management Decisions - Actually Managing - Senior Managers – Who are they? Department Head  Operations Manager  Supervisor ? Board  © McAleenan & McAleenan, 2007

a) Fine b) Remedial Order c) Publicity Order d) Failure to comply with b) and c) will lead to additional fines on conviction Penalties © McAleenan & McAleenan, 2007

(1) An individual cannot be guilty of aiding, abetting, counselling or procuring the commission of an offence of corporate manslaughter. 18. No Individual Liability © McAleenan & McAleenan, 2007

(1)Where in the same proceedings there is— (a)a charge of corporate manslaughter or corporate homicide arising out of a particular set of circumstances, and (b) a charge against the same defendant of a health and safety offence arising out of some or all of those circumstances, the jury may, if the interests of justice so require, be invited to return a verdict on each charge. 19. Convictions under this Act and H&S Legislation © McAleenan & McAleenan, 2007

(2) An organisation that has been convicted of corporate manslaughter or corporate homicide arising out of a particular set of circumstances may, if the interests of justice so require, be charged with a health and safety offence arising out of some or all of those circumstances. 19. Convictions under this Act and H&S Legislation © McAleenan & McAleenan, 2007

Organisations best course of action; Review and ensure compliance with systems and procedures to manage their operations safely. Questions to address Are you sure that the systems are in place and sufficient to address the occupational safety and health issues? Are you sure that the systems are being consistently complied with? How can you be sure? Is it reasonable for senior managers to know the actions of its lower level managers? © McAleenan & McAleenan, 2007

Management System – Meets the requirements of H&S legislation Meets the needs of the business. Level of H&S advice – Professional for design teams and senior managers Technical for operational matters Employees have skills, knowledge, resources and authority to act within their sphere of control and influence. Necessary functions Competence © McAleenan & McAleenan, 2007

Where to now? Review and update operational safety procedures Remove any superfluous procedures Positive accident reduction management Update design safety advice Review and update H&S and Procurement approach Establish effectiveness of controls assurance through audit through senior management intervention External audit © McAleenan & McAleenan, 2007

END © McAleenan & McAleenan, 2007

KEY MEASURES The new offence of corporate manslaughter, provides a more effective sanction for holding companies and other organisations to account when gross negligence in their senior management has had fatal consequences. This will improve the effectiveness of the law by enabling a wider range of senior management conduct to be taken into account when prosecuting an organisation for manslaughter. This does not introduce new standards: organisations taking their current health and safety obligations have nothing to fear. The Act is intended to target corporate liability, as opposed to the responsibility of individual directors or others. But individual prosecutions will continue to be possible for existing offences. The Act applies to Government Departments and other Crown bodes, as well as industry, where both are engaged in similar activities. But it would not apply to certain core public functions or decisions relating to matters of public policy, that are subject to existing lines of public accountability. Source: © McAleenan & McAleenan, 2007

Vicarious Liability Theory The expression “vicarious liability” signifies the liability which the employer may incur as a result of the wrongdoing of his employee. Directing Mind and Will Theory the mind and will of the senior directors and managers of a company are the mind and will of the company itself: where a particular offence is committed by a senior director or manager of a company, the company itself is deemed to have committed it. Personal Liability Theory It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety. © McAleenan & McAleenan, 2007