After a delay of some eight or nine years the Corporate Manslaughter and Corporate Homicide Bill was finally introduced into the House of Commons on 21 July, 2006. Reforming the law in this area has been a longstanding commitment of the present Government. The current law makes prosecutions extremely difficult and only a handful of companies have been convicted of manslaughter. These have all been small companies as, in order to convict a company of manslaughter under the existing law, it is necessary to show that a senior individual such as a director or senior manager is himself guilty of gross negligence manslaughter. This is practically impossible in large companies with complex management structures. The purpose of the Bill is to make it easier to prosecute companies for manslaughter by removing the focus on individual failings and instead looking at the conduct of senior management collectively. For the first time, government departments and other Crown bodies can be prosecuted for manslaughter as the Bill will remove Crown immunity in certain limited circumstances. The penalty on conviction is an unlimited fine and/or a remedial order.
Fines for health and safety breaches have increased in recent years. Transco was fined £15m following an explosion in Scotland which caused four deaths. In July 2006 the Court of Appeal reduced the fine imposed on a Balfour Beatty company following the Hatfield train derailment from £10m to £7.5m. This is a substantial increase on the fine of £2m imposed on Thames Trains following the Paddington rail disaster in 1999.
The Bill has broad cross-party support, although it was apparent during the debate on the second reading which took place on 10 October that some members of Parliament, particularly those with links to the trade union movement, believe that it does not go far enough and will not in fact increase the number of convictions. They say that the senior management test is not an improvement on the existing law and that the emphasis on senior managers will result in the inappropriate delegation of safety responsibilities to junior staff, leaving them vulnerable to prosecution for manslaughter or under the Health and Safety at Work Act 1974. During the debate, Home Secretary John Reid conceded that the offence will take account of the management of the fatal activity generally within the organisation, although the conduct of senior management will still be an important element.
Campaigners are also lobbying for the introduction of secondary liability to make individual directors criminally accountable where a company is guilty of manslaughter. There is no provision for this in the Bill and the Government seems unlikely to make concessions. Individual directors may still be prosecuted under the existing law and sent to jail; the Bill will not affect this. The Health & Safety Commission is also preparing new guidance on directors’ responsibilities for safety for publication in spring 2007.
In defending the need for new legislation, the minister said: "Companies and other organisations must be held prop-erly to account for gross corporate negligence that has led to loss of life. It is not enough for those failings to be punished under health and safety law." The offence will only apply to the worst cases of corporate failings and there are no new duties imposed on organisations.
The Bill will be scrutinised in committee and there will be a third reading. The Government has promised to review the wording of the senior management test and it is possible that legislation will be in place in 2007. The current Bill, if enacted, will produce much legal argument on matters including the meaning and effect of the ‘senior management test’, a question of fact which will vary from company to company and which may present problems similar to those under the current law. In addition, the prosecution must show that the organisation owed a duty of care to the deceased. In some circumstances this will be clear, such as the duties owed by an employer or occupier. In other cases the judge will have to decide, which may lead to uncertainty. The basis of the remaining Crown immunity is also bound to be challenged. The Bill does not create a level playing field between the public and private sectors and the Crown Prosecution Service will only be able to prosecute government departments on a fairly narrow basis. The legislation will not, for example, cover deaths in custody.
What is certain is that the legislation, if implemented, will lead to an increased scrutiny of work-related deaths by the police, who are charged with investigating the new offence and a corresponding increase in the number of criminal investigations and prosecutions of both companies and individuals.
Fiona Gill is a partner at Davies Arnold Cooper.