Corporate manslaughter: the issues
May 16, 2005
Fresh from an election victory, the Labour government is widely expected to introduce a corporate manslaughter bill.
The government has invited consultation and comment on a proposed bill by 17 June 2005.
The present law
Under English law, there are two general homicide offences:
- murder
- manslaughter.
If someone kills without intending to cause death or serious injury, but was blameworthy in some other way, then this is often referred to as involuntary manslaughter.
Within the various categories of manslaughter, there is also the concept of gross negligence manslaughter. According to the Crown Prosecution Service, it has to be established that:
- there was a duty of care owed by the accused to the deceased
- there was a breach of the duty of care by the accused
- the death of the deceased was caused by the breach of the duty of care by the accused
- the breach of the duty of care by the accused was so great as to be characterised as gross negligence and therefore a crime
However, the problem lies in that for a company to be prosecuted for manslaughter, including gross negligence manslaughter, it is necessary to identify a "controlling mind" who is also personally guilty of manslaughter.
It is not possible under the present law to add up the negligence of several individuals to show the company as grossly negligent. A specific individual has to be identified as a controlling mind for corporate manslaughter to be proven.
The Government's Proposals
After nearly five years of talking about it, the Home Office this spring finally published a document entitled "Corporate Manslaughter: The Government's Draft Bill for Reform".
Under the proposed legislation, an organisation is guilty of the offence of corporate manslaughter if the way in which any of the organisation's activities are managed or organised by the 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.
A person is a "senior manager" of an organisation if he plays a significant role in the making of decisions about how the whole or a substantial part of its activities is to be managed or organised; or the actual manager or organiser of the whole or a substantial part of those activities.
A gross breach is a breach of a duty of care by an organisation that falls far below what can reasonably be expected of the organisation in the circumstances.
To decide that question, the jury must consider whether the evidence shows that the organisation failed to comply with any relevant health and safety legislation or guidance.
The Draft Bill does set out a number of other factors which the jury will also have to consider, such as whether or not senior managers sought to cause the organisation to profit from its failure, ie that they deliberately cut corners to reduce costs or boost profits.
Critics of the proposed legislation are already concerned that such additional factors will make obtaining a conviction difficult.
The law will affect companies supplying services, as well as employers and occupiers of land, which will include premises and building sites.
Further information can be found on the BBC News site.
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