It will have taken over 12 years, but April 2008 will see the introduction of a statutory criminal offence of corporate manslaughter. Given the high profile failures of recent times the Police and CPS will be under tremendous pressure to secure an early conviction that has real public impact. Whilst there is no new individual offence, the first organisation to be convicted will face a battle for survival and Senior Directors are likely to be the first casualties.

Here, Duncan Astill, a Solicitor who specialises in dealing with fatal accidents in the workplace, outlines the new offence and the steps you need to start taking to minimise the chances of your own organisation providing retrospective justice to all the victims and families of every fatal accident that has driven this new offence over the past two decades.

The new offence

The new offence will apply to all organisations whatever their legal standing provided that they owed a relevant duty of care to the deceased as:

		employer
		occupier of premises;
		-	supplier of goods or services (whether for consideration or not),
		-	undertaker of any construction or maintenance operations,
		-	the carrying on by the organisation of any other activity on a commercial basis, or
		-	the user or keeper of any plant, vehicle or other thing;

Further down the line the offence will be extended to cover a duty owed to someone for whose safety the organisation is responsible where that person is detained at a custodial institution, in a custody area at a court or a police station or short-term holding facility.

Relevant duty holders will be guilty of an offence if ‘the way in which any of its activities are managed or organised by its senior managers caused a persons death and amounts to a gross breach of a … duty of care owed ….’

A Senior Manager is defined as someone who plays a significant role in the making of decisions about how the organisation or a substantial part of its activities are managed or organised, or someone who actually manages and organises the company.

This requirement whilst much wider than the old ‘directing mind test’ that prevented so many prosecutions in the past, will still mean that organisations will not be liable where the actual failure causing the death was way down the chain of command. Previous guidance indicated that the term was intended to cover Regional Managers in the case of national organisations but would necessarily be determined by the particular context of an individual case. A Branch Manager, even within a large scale organisation could be considered a Senior Manager in many situations. In cases such as the legionnaires deaths in Barrow the Design Services Manager was charged even though they were a ‘third tier official’. This individual was clearly not a ‘directing mind’ but they will probably find themselves a Senior Manager under the new Act.

Gross

Whilst using the same term as the common law offence of gross negligence manslaughter the new offence is not simply asking the Court to decide whether the conduct was so bad that it should be considered criminal; whether it has the look and feel of manslaughter in the eyes of the public. Gross breach is defined under the Act as being ‘where the conduct of the organisation falls far below what can reasonably be expected of the organisation in the circumstances’. The jury must consider whether the evidence shows that the organisation failed to comply with any health and safety legislation and if so consider how serious that failure was and how much of a risk of death it posed. The jury may also consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged or tolerated any such failure. Interestingly they may also have regard to any relevant health and safety guidance along with any other matters they consider relevant.

This will mean that any failures to follow mere guidance could be left to the jury to evaluate in their deliberations on whether there was a gross breach of duty. The judge will have to very careful in his directions to the jury to ensure that proper weight is given to any particular guidance relied upon by the prosecution. The jury will also be able to tot up various failures at different levels within the organisation and aggregate them together when deciding whether there was a gross breach of a relevant duty of care.

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End users

There is no reason why a gross failure in the supply chain that causes the death of and user would not be caught under the new offence. Contaminated confectionary, toxic paint or loose magnets on mass produced toys will all be potential candidates for a first prosecution.

No personal liability

An individual cannot be guilty of aiding, abetting, counselling or procuring an offence of corporate manslaughter. They can of course continue to face charges under the existing common law offence of gross negligence manslaughter in respect of their own personal conduct and can be prosecuted individually under Health and Safety legislation.

However, it is this lack of individual liability that critics says fails to give the new offence teeth. They say that without individuals who hide behind the corporate veil being brought to account there will continue to be an incentive to cut corners, save money and cost lives. The TGWU and construction union UCATT recently ran a campaign to make company directors '… take the workplace health record of their company as seriously as its financial one.' This appeared to be having some momentum with the Health and Safety Commission (HSC) who asked its civil servants last year to ‘explore the possibility of imposing duties on directors’ of private sector and public bodies.

The effect of placing specific duties on directors and getting health and safety on the boardroom agenda will in theory make it easier to prosecute individual directors rather than just the company itself for breaches of Health and Safety legislation. The fact that most organisations devolve health and safety responsibility down the ranks currently makes it difficult to prove that any particular failing was the result of the neglect of a director or that it was committed with their consent. Just like corporate manslaughter, there are very few successful prosecutions against individual directors under section 37 of the Health and Safety at Work Act 1974 and almost no Director disqualification orders.

Reputational damage

The alternative view is that companies spend millions of pounds on marketing their image to consumers and that a manslaughter charge will cost far more in the marketplace than they will ever have to pay in fines. This alone is enough of an incentive to ensure high standards. It is perhaps fair to say that any company convicted of corporate manslaughter, especially in the early days of the offence, would not need the help of Gerald Ratner to bring sales figures tumbling down. A conviction may even have a bigger impact in the eyes of the Public than the need to borrow money from the Bank of England. Whether it will really be enough to bring down household name is another matter, as it is often investor confidence that remains crucial and a rebrand can be swiftly achieved.

Given that the Jury will be asked to undertake a kind of Health and Safety audit at trial the single most valuable thing you can do is revisit your entire H&S compliance strategy and decide whether you really are giving it the level of importance it deserves. Who is leading on H&S in your organisation? Is the same person that it says it is in your policy? Are you actually creating greater risk by devolving control amongst the organisation? What are our five biggest risks and what are ding about them? As a Chief executive I would certainly want direct input from the Health and Safety team unfiltered by other Senior Managers.

Self defence

So in the eyes of the public, justice will be achieved through the new law, but what should boards be doing? The Government were at pains to point out that it is their intention to reserve the new offence for only the very serious cases, where this sort of criminal sanction is appropriate. It is designed to compliment rather than supplant existing liabilities under health and safety law; it imposes no new legal responsibilities or higher standards, but we are clearly playing for bigger stakes.

It is vital that you carryout your own evaluation of health and safety compliance to ensure that you are a long way from what any jury could conceivably consider far below what is expected.

Preparing for the worst

Organisations will be at their most vulnerable in the immediate aftermath of an incident. The Memorandum of Understanding between the Police and HSE will ensure that there is a multi agency approach to any workplace fatality each with very different objectives.

It is vital that a clear strategy is in place to manage that investigations. Are you clear as to the powers of the Police and the HSE? What documentation are they entitled to and when can you refuse to provide interviews? How should staff be supported through gruelling interviews? Who is in danger of personal criticism?

The approach of the Police and HSE will be set at a very early stage. Any perception that there was a delay in notification of the Police or contamination of the scene will be met with suspicion and generate an even more in depth investigation. Yet at the same time when is it legitimate to defend your position?

Many organisations are quite naturally appalled that a fatal accident has occurred and they will strive to ensure that the cause of the incident is known as quickly as possible to prevent a repeat of the tragedy. Decisions will be made in an instant on the basis of rudimentary information as to the potential causes. Will this information, probably not immune from Police and HSE eyes, be used to build a case against the organisation? When is being co-operative actually putting the organisation at risk?

The management of any incident in the public arena will also be vital. Swift action may be painful at the time but may well save much worse criticism further down the line. Network rail appear to have all but eliminated criticism following the fatal train crash in Cumbria last year by making an early frank admission. Contrast this with the years of fall out that Railtrack endured after Hatfield, even after they had ceased to exist as an organisation. You need to put systems in place now to ensure that you can respond immediately to the worst if it were to happen.

Conclusion

The manufacturing industry has always had its fair share of Health and Safety incidents and will continue to do so. Some of those will be fatalities. From April 2008 the response of the Police and HSE will be magnified and persistent as they seek to establish convictions under the new offence.

First the Crown Prosecutions Service and then the jury will be asked to evaluate how far below the level that can reasonably be expected in the circumstances the conduct fell. They will do that by reference to compliance with health and safety legislation and guidance. You should be carrying out that evaluation yourselves now to identify where improvements can be made whilst at the same time putting in place the infrastructure for you to be able to deal with the worst should it happen.