27th March 2005
Corporate Manslaughter: Update
The long awaited Corporate Manslaughter Bill (Cm 6497) was published by the UK government on 23 March 2005. The basic reasoning and principles are as summarised in Hot Topics of 10 February 2001 (see Archive), that is that current legislation requires an almost impossible burden of proof for a successful prosecution which relies on proving that a single individual at the very top of a company is personally guilty of gross failure that led to a death. There have been a number of high profile cases of attempted prosecutions for corporate manslaughter over the past two decades which have failed because of the current legal position e.g. Herald of Free Enterprise, Southall rail disaster. That obstacle will be removed by the proposed Bill. However, earlier anticipation that penalties would be directed at both organisations and individual directors or senior managers who were culpable has not been met. The penalties focus will be on unlimited fines against the convicted organisation.
The draft Bill proposes a new offence of corporate manslaughter for holding organisations to account for gross failings by their senior management that have had fatal consequences. This would complement, not replace, other forms of accountability such as prosecutions under health & safety legislation and the new accountability would be clearly linked to the standards required under those laws. The aim of the proposals is to enable prosecutions against companies and other organisations to be more effective and it does not affect the pre-existing individual liability of directors and others (e.g. as under existing Section 37 of the Health & Safety at Work etc Act 1974).
Total immunity from prosecution enjoyed by government departments and other Crown bodies has now been lifted for the first time but a number of exemptions and qualifications are recognised in the Bill.
The Bill ties the new offence to ‘management failure’ or a prevailing failure in the way the company’s activities were managed or organised, rather than any negligent act by an individual as a proximate cause of the accident which resulted in death. Once again, the essential requirement for all organisations to have in place a robust and effective health & safety management system (SMS) is emphasised by the Bill.
Copies of the Bill and background documents are available from www.homeoffice.gov.uk and public comments on the Bill must be returned to the Home Office by 17 June 2005.
Whether the Bill becomes law will depend on whether the present government is returned in the forthcoming General Election.
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