Corporate Manslaughter Bill consultation

In March 2005, after a delay of several years, the government published a draft Bill for a new offence of Corporate Manslaughter. The consultation paper containing the Bill is available here. This will open a PDF in a new window

The Bill contains an offence framed in a way that would be more limited in scope than the previous government proposals, for more details click here. There would be no special provisions relating to personal liability for directors or parent companies, and it would be confined to corporations (not as was proposed earlier to all 'undertakings' which would have included partnerships, trusts and unincorporated associations). It would also have some application - albeit circumscribed - to government departments and other public bodies.

The new offence would preserve the core of the existing common law offence which is criminal liability for "gross negligence". The principal effect of the reform would be to allow prosecutions to proceed more easily against larger companies by eliminating the doctrine of 'identification': it would no longer be necessary to identify a 'controlling mind' at director or similar level who had personally been grossly negligent.

It would still be possible for directors, managers and other individuals to be personally prosecuted for manslaughter as well, but this would remain under the old common law of manslaughter.

The proposed offence

The offence would be committed by an organisation when "the way in which any of the organisation's activities are managed or organised by its senior managers

(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"

Who are senior managers?

These would be defined in terms of persons who play a significant role in either "the making of decisions about how the whole or a substantial part of an organisation's activities are organised", or "the actual managing or organising of the whole or a substantial part of those activities".

What is a relevant duty of care?

These could be any duties owed by an organisation under the law of negligence to the deceased as an employer, as an occupier of land, in connection with the supply of goods or services, or (a catch-all provision) the "carrying on by the organisation of any activity on a commercial basis". (The law of negligence would extend for these purposes to statutory duties such as those in the Occupiers Liability Acts).

What is a gross breach?

The test for "gross' breach would be whether the failure in question constituted "conduct falling far below what can reasonably be expected of the organisation in the circumstances". In an attempt to clarify what this means the Bill contains a number of factors to take into account here concerning any failure to comply with relevant health and safety legislation or guidance, and whether the failure was serious, whether or not senior managers knew or ought to have known of the failure or of the risk of serious harm associated with it, and whether the organisation sought to profit from the failure.

What organisations are covered?

The offence would apply to any corporation, regardless of where in the world it is incorporated. (However, the offence will only apply to harm resulting in death sustained in England and Wales or certain other specified circumstances such as territorial waters or onboard British vessels).

In principle, there would be no Crown Immunity providing exemption from prosecution. It is proposed that a list of government department and bodies would be contained in a schedule that would confirm that they are potentially subject to the offence. However, the circumstance in which a prosecution could occur would in practice be very limited: it would have to be in the government body's capacity as an employer or occupier of land and not as regards its exercise of exclusively public function. The implications of this are not yet clear, but it would be specifically provided that a public authority does not owe a duty of care in respect of decisions upon matters of public policy and the allocation of resources or way in competing for public interests.

Penalties

This would be an indictable offence and would attract unlimited fines (the same as the existing common law offence). It is unsettled how fines would be applied to Crown bodies whether this would in effect amount to money being moved around public funds. There is also provision for courts being able to make remedial orders for remedial action to be taken by convicted organisations (something which already exists in health and safety legislation and which is generally not used in practice).

Scotland

This Bill would not reform Scots Law. An expert group is being set up by the Scottish Executive to review the law and consider parallel legislation there.

CMS Cameron McKenna will be preparing a response to the government consultation. We welcome views on the draft Bill, either via our on-line survey by clicking here.