Corporate killing: Government proposals for reforming law on corporate manslaughter

United Kingdom
SUMMARY

The principal proposal is that a company could be convicted of a new statutory offence of corporate killing. This would arise where there has been a management failure which is the cause or one of the causes of a person's death, and the failure constitutes conduct falling far below what can reasonably be expected of the corporation in the circumstances.

BACKGROUND TO THE PROPOSALS

Corporate manslaughter was established as a possible offence in a key ruling in the trial of P&O after the Zeebrugge ferry disaster and is based on a finding of "gross negligence" of a criminal nature.

The formulation of a new corporate killing offence was a recommendation made by the Law Commission in its report on the law of involuntary manslaughter in 1996. The government has been criticised for a delay in implementing these proposals, and is now responding to what it considers to be a widespread belief that companies cannot be held properly accountable under the existing law for negligence causing death.

The government cites accidents such as the Herald of Free Enterprise (1987), the Kings Cross fire (1987), the Clapham rail crash (1988), the Southall rail crash (1997) as examples.

It is thought that there have only been three successful manslaughter prosecutions against companies in modern times, all of them small organisations where the serious negligence of a director could be directly associated with the conduct of the company. It is this issue of "identification" of the company's failings with the "negligence" of a controlling mind or minds of the company which is being blamed for the failure of other high profile prosecutions against larger organisations.

DETAILS OF THE PROPOSALS

Those familiar with the previous recommendations of the Law Commission should be aware that there are a number of differences in the preferred approach of the government in these new proposals.

In particular, the law of corporate killing would be applicable not just to corporations but also to any "undertakings, which could include eg charities, schools, hospital trusts, partnerships and unincorporated associations as well as a range of public bodies such as local authorities. (However, the government proposes not to extend the law to Crown bodies who would instead be subject to a special procedure for courts making a declaration of non-compliance with the law).

THE MAIN PROPOSALS FOR CORPORATE KILLING

The corporate offence would be committed where the conduct of the organisation in question causing death fell far below what could reasonably be expected.

It would not be necessary for the prosecution to have to prove that the risk was obvious or that the defendant organisation was capable of appreciating the risk.

A death should be regarded as having being caused by the conduct of the organisation if it is caused by a "management failure" so that the way in which its activities are managed or organised fails to ensure the health and safety of persons employed or affected by its activities.

Such a failure will be regarded as a cause of a person's death, even if the immediate cause is the act or omission of an individual.

EXTENDING OFFENCES TO DIRECTORS AND MANAGERS

The government supports individual officers being charged with one of the other new manslaughter offences (eg killing by gross carelessness or reckless killing) where there is sufficient evidence. In addition it is proposed that where a business has been convicted of the corporate killing offence, individual officers who are found culpable could face disqualification proceedings in which they would be barred from holding any management role in an undertaking. (This would be considerably more wide-range than in the existing powers of disqualifying persons acting as directors). To achieve this, the government contemplates introducing an additional offence of a person contributing substantially to an organisation committing the corporate offence.

MEASURES AGAINST RELATED ORGANISATIONS

The government proposes that criminal proceedings could also be brought against a parent or other group company if it can be shown that its management failures were a cause of the death concerned. In this respect the proposal is not materially different from the existing position with statutory offences such as those under the Heath and Safety at Work Act 1974.

PENALTIES

The government contemplates that the main financial penalty against an organisation would be a fine of an unlimited amount. This reflects the existing position.

In addition, the government suggests that the court should have powers to make remedial orders for an application by the prosecuting authority, and such orders could set a deadline for specific management improvements or other action in matters related to the causes of death. Similar power already exists under the Health and Safety at Work Act 1974, but in practice it is not used.

In relation to potential offences by individual directors and managers, it is suggested that as well as the potential for disqualification they should be liable for fines, but possibly also imprisonment.

ENFORCEMENT

In contrast to the existing position in England and Wales where the Crown Prosecution Service have sole authority to bring corporate manslaughter proceedings it is proposed that the Health and Safety Executive would be empowered to investigate and prosecute the new offences in addition to the CPS. The government considers that other enforcement authorities such as those for marine safety, civil aviation or food safety might also be empowered in this way.

MISCELLANEOUS

Proposals are also included in the paper for dealing with issues of how corporate bodies incorporated outside Great Britain should be subject to the corporate killing laws, and how insolvent companies would be dealt with.

RESPONDING TO THE PROPOSALS AND FURTHER INFORMATION

The deadline for responding to the consultation for the government proposals is 1 September 2000. Responses should be sent to:

Edward Pegg

Room 316

Sentencing and Offences Unit

Home Office

50 Queen Anne's Gate

London, SW18 9AT

CMS Cameron McKenna will be working with the Confederation of British Industry Working Party in preparing a response to the proposals. Comments from our clients and contact will be welcome (addressed to mlt@cms-cmck.com).

The text of the government proposals can be found at www.homeoffice.gov.uk/consult/invmans.pdf

The original Law Commission recommendation can be found in "Legislating the Criminal Code - Involuntary Manslaughter" Law Com Number 237 (Stationery Office)

Mark Tyler 5 June 2000