Governance Committee Item 6
26 March 2008
Corporate Manslaughter and Corporate Homicide Act 2007
Report by the Chief Executive
Contact: ( David Kelly 01962 846661)
E-mail:
1 / Summary
1.1 / This report highlights the impact of the Corporate Manslaughter and Corporate Homicide Act 2007 (“the Act”)on the Hampshire Police Authority and on the Hampshire Constabulary.
1.2 / The Act applies where fatalities occur as a result of the way in which an organisation conducts it activities or as a result of the way in which the activities of the organisation are managed or organised by its senior management.
2 / Recommendation
2.1 / That the Committee note the content of this report
2.2 / That the Chief Constable be asked to carry out a review of the existing health and safety arrangements in the Hampshire Constabulary (“the Constabulary”) in the light of the new risk brought about by the Act.
2.3 / That the Chief Constable be asked to prepare an initial report containing details of the findings of the review proposed under 2.2 and detailed proposals for the ongoing reporting to the Authority on the efficiency and effectiveness of the health and safety arrangements within the Constabulary
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3.1 / Introduction and Background
The Corporate Manslaughter and Corporate Homicide Act 2007 received Royal Assent on 26 July 2007 and will take effect on 6 April 2008. The implementation of the Act is a step towards more rigorous investigation of organisations for manslaughter following fatalities connected with the activities of a corporate entity – whether public or private.
3.2
3.3
3.4 / The Act makes provision for a new offence of corporate manslaughter and for this to apply to companies and other incorporated bodies, Government departments and similar bodies, police forces fire authorities and certain unincorporated associations.
In the United Kingdom, over 40,000 people have been killed in commercially-related circumstances between 1966 and 2006 but under the common law only 34 companies have been prosecuted for homicide and only sevenconvictions obtained. On average about 400 people (employees, self-employed people, and members of the public) are killed in incidents through the operation of commerce each year. Long term deaths bring the figure much higher. These include circumstances where a company has been responsible for causing the contracting of a medical condition (such as asbestosis or mesothelioma) whose development takes many years to cause death. Commercially caused deaths on the roads are estimated to reach up to 1,000 each year.
Public anxiety at commercial recklessness was heightened by a number of major cases such as the Southall rail crash in which seven people were killed and 151 injured, the capsize of the Herald of Free Enterprise killing 192 and the Paddington crash in 1999.
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4.1
4.2 / The Current law
Following a work related death, the police, with assistance from the Health and Safety Executive (“HSE”), investigate:-
-whether the death resulted from an individual's gross negligence; and
-whether that individual was sufficiently senior in the organisation that his guilt should equate to the company also being considered guilty of manslaughter.
The majority of previous corporate manslaughter prosecutions failed due to the "identification principle" which requires that a senior level individual (in most cases a director or someone of equivalent standing who could be said to embody the company in his actions and decisions) also had to be personally guilty of manslaughter.
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5.1
5.2
5.3
5.4
5.5
5.6
5.7 / The New Act
The new offence will be called corporate manslaughter and builds on key aspects of the common law offence of gross negligence manslaughter . However, rather than being contingent on the guilt of one or more individuals, liability for the new offence depends on a finding of gross negligence in the way in which the activities of the organisation are run. In summary, the offence is committed where, in particular circumstances, an organisation owes a duty to take reasonable care for a person's safety and the way in which activities of the organisation have been managed or organised amounts to a gross breach of that duty and causes the person's death. How the activities were managed or organised by senior management must be a substantial element of the gross breach.
The elements of the new offence are:
- The organisation must owe a "relevant duty of care" to the victim.
- The organisation must be in breach of that duty of care as a result of the way in which the activities of the organisation were managed or organised. This test is not linked to a particular level of management but considers how an activity was managed within the organisation as a whole. Section 1(3) stipulates that an organisation cannot be convicted of the offence unless a substantial element of the breach lies in the way the senior management of the organisation managed or organised its activities.
- The way in which the organisation's activities were managed or organised (referred to in this report as "the management failure") must have caused the victim's death. The usual principles of causation in the criminal law will apply to determine this question. This means that the management failure need not have been the sole cause of death; it need only be a cause (although intervening acts may break the chain of causation in certain circumstances).
- The management failure must amount to a gross breach of the duty of care. The test asks whether the conduct that constitutes the breach falls far below what could reasonably have been expected. This reflects the threshold for the common law offence of gross negligence manslaughter. There is no question of liability where the management of an activity includes reasonable safeguards and a death nonetheless occurs.
- A recent ruling by the Court of Appeal in a case of a pending prosecution of a director under section 37 of the Health and Safety at Work etc. Act 1974 (HASW Act 1974) relates closely to the need to monitor health and safety practices. The director concerned was responsible for an organisation where a young child was killed due to unsafe practices using forklifts. The director was also the chair of the port’s Strategic Health and Safety Management Committee. The Court of Appeal overturned a previous preliminary ruling by the judge who had ruled that it was necessary to demonstrate that the individual director knew of the unsafe practices before neglect can be established. The ruling by the Court of Appeal was that it was sufficient to show that the individual either knew or ought to have known by virtue of the circumstances and had a duty to act.
The new offence will be triable only in the Crown Court in England and Wales and will involve proceedings before a jury. The sanction is an unlimited fine although the court will also be empowered to impose a remedial order and a publicity order on a convicted organisation.
The new offence only applies in circumstances where an organisation owed a duty of care to the victim under the law of negligence. Duties of care commonly owed by corporations include
- The duty owed by an employer to his employees to provide a safe system of work
- The duty owed by an occupier of buildings and land to people in or on, or potentially affected by, the property.
- Duties arising out of the activities that are conducted by corporations, such as the duty owed by transport companies to their passengers.
The effect is, broadly, to include within the offence the sort of activities typically pursued by companies and other corporate bodies, whether performed by commercial organisations or by Crown or other public bodies. Many functions that are peculiarly an aspect of government are not covered by the offence because they will not fall within any of the categories of duty of care in this section. In particular, the offence will not extend to circumstances where public bodies perform activities for the benefit of the community at large but without supplying services to particular individuals. This includes wider policy-making activities on the part of central government, such as setting regulatory standards and issuing guidance to public bodies on the exercise of their functions. In many circumstances, duties of care are unlikely to be owed in respect of such activities in any event, and they will remain subject to other forms of public accountability. Sections 3 to 7 provide that the offence does not apply to the performance of specified public functions. However, whether the offence is capable of applying in any given circumstances will depend in the first place on whether a duty of care is owed to a person by an organisation, and whether the duty of care is a "relevant duty of care" .
5.8
5.8.1
5.8.2
5.8.3 / Exemptions and Special Provisions for Police Authorities and the Constabulary
Section 5 deals with policing and law enforcement activities performed by the police and other law enforcement bodies.
Subsection (1) provides an exemption that applies to the police and other law enforcement bodies in respect of all categories of duty of care referred to in section 2, i.e., including those duties of care owed by an organisation as an employer or the occupier of premises. But this wide exemption is available only in limited circumstances: specifically, operations dealing with terrorism, civil unrest or serious disorder in which an authority's officers or employees come under attack or the threat of attack; or where the authority in question is preparing for or supporting such operations; or where it is carrying on training with respect to such operations. This reflects the approach adopted in the existing law of negligence, which has already recognised that the policing of violent disorder where the police come under attack or the threat of attack will not give rise to liability on the part of an employer.
Subsection (3) confers an exemption that applies to a wider range of policing and law enforcement activities, but not in respect of the duty of care owed as employer (or occupier). The exemption therefore operates to exclude circumstances where the pursuit of law enforcement activities has resulted in a fatality to a member of the public. Many of the activities to which this will be relevant will be ones that are not in any event covered by the offence either because no duty of care is owed or because they do not amount to the supply of services or the activities are exclusively public functions. However, this might not always be the case and some areas may give rise to question. Subsection (3) makes it clear that policing and law enforcement activities are not, in this respect, covered by the offence. This will include decisions about and responses to emergency calls, the manner in which particular police operations are conducted, the way in which law enforcement and other coercive powers are exercised, measures taken to protect witnesses and the arrest and detention of suspects.
As police forces are not incorporated bodies Section 13 ensures that police officers are to be treated as the employees of the police force for which they work (and are therefore owed the employer's duty of care by the force); it also makes similar provision in relation to special constables and police cadets, police trainees in Northern Ireland and police officers seconded to the Serious Organised Crime Agency or National Policing Improvement Agency. It also ensures that police forces are treated as occupiers of premises and that other conduct is attributable to them as if they were distinctly constituted bodies
5.9
5.9.1
5.9.2
5.10 / Differing application to the Police Authority and the Constabulary
Any corporate manslaughter prosecution of a police force or police authority is likely to arise out of an alleged breach of duty towards an employee or police officer. As such a detailed consideration of the organisation’s compliance with it obligations under the HASW Act 1974 is likely to be involved. The industry standard for best practice in this regard is HSG 65-Sucessful Health and Safety Management
The authority should base its own health and safety management of its own functions and staff and it scrutiny of the Constabulary on this standard
Police authorities and police forces have distinct but related obligations under the HSWA Act 1974. In essence:-
- The primary statutory function of a police authority under s6 of the Police Act 1996 is one of strategic direction and oversight, aimed at a policy level to ensure the maintenance of an efficient and effective police force. The delivery of policing services is the responsibility of the Chief Constable, and the police authority will hold him or her to account.
- The Chief Constable has the direction and control of the police force and thus has responsibility for its activities and operations (both direct policing operations and the range of support functions).
- The Chief Constable must discharge the general duties of an employer, under s2 HASW, in respect of police officers.
- The employer of police staff is the police authority, but such staff remain under the direction and control of the Chief Constable who, by s15(2) Police Act 1996 holds powers of engagement and dismissal. The police authority, as legal employer, owes a duty for the health and safety of police staff under s2 HSWA and it owes a similar duty to non-employees under s3 HSWA, both of which it discharges through the safety management system of the police force, and by oversight through corporate governance processes. It has a duty under s4 HSWA (as does the Chief Constable) to ensure that premises within the Police Force estate owned by the Police Authority are safe, which is discharges through the safety management system and through its oversight of the police forces management of the police estate.
- So far as the activities of the police force affect the health and safety of persons who are neither police officers nor in the employment of the policy authority, it is the responsibility of the police service (under the direction and control of the Chief Constable) to ensure so far as is reasonably practicable that the health and safety of such persons are not exposed to risk.
- The police authority’s ‘undertaking’ for the purposes of s3 HASW includes monitoring the effectiveness and efficiency of the police force’s health and safety management system.
- In summary, it is not the police authority’s responsibility to ensure that the police force manages its risks as low as reasonably practicable, but rather to ensure that the police force has systems in place to manage risks to a tolerable level. The police authority must do all that is reasonably practicable to ensure that the police force is discharging its health and safety responsibilities efficiently and effectively, through its safety management system, by way of corporate governance and scrutiny. The police authority’s role is to take reasonable steps to scrutinise the Constabulary by way of audit, scrutiny and monitoring.
Secondary liability for the new offence is specifically excluded. Secondary liability is the principle under which a person may be prosecuted for an offence if they have assisted or encouraged its commission. In general, this means that a person can be convicted for an offence if they have aided, abetted, counselled or procured it. Section 18 specifically excludes an individual being liable for the new offence on this basis. This does not though affect an individual's direct liability for offences such as gross negligence manslaughter, culpable homicide or health and safety offences, where the relevant elements of those offences are made out.
5.11 / Penalties
5.11.1
5.11.2
5.11.3 / An organisation that is guilty of corporate manslaughter or corporate homicide is liable on conviction on indictment to a fine. Courts will be able to impose unlimited fines on organisations and the generally held view is that they will look to reflect the gravity of the new offence by imposing substantially larger fines than those presently awarded under the Health and Safety at Work Act. Consultation on the level of fines is ongoing with fines representing 5-10% of turnover being proposed.
The Courts will also be able to impose "remedial orders" requiring the organisation to put right any relevant deficiencies in their systems and procedures, within a specified period of time.
Very importantly courts will also have the power to "name and shame" by requiring organisations to publicise particulars of their offence, the conviction and the penalties imposed within a specified period by the imposition of a “publicity order.” The public stigma and damage to reputation attached to the offence should be of particular concern to the Police Authority. This provision will only be commenced once supporting sentencing guidelines are available (estimated to be Autumn 2008)
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6.1
6.2
6.3
6.4
6.5
6.6
6.7 / Actions
The Authority has a duty to ensure that robust health and safety policies and procedures are in place in the Constabulary and that these are underpinned by a supportive culture throughout the whole organisation.
It is also important that both the Constabulary and the Authority are confident that existing health and safety arrangements in the Constabulary are sufficiently comprehensive and robust so as to be able to undergo any scrutiny or challenge.
In the light of the new risk to the Authority it is recommended that this Committee asks the Chief Constable to produce a report for the Committee containing a thorough review of the Constabulary’s existing health and safety arrangements and proposals for future method of reporting on the management of health and safety within the Constabulary.
The Chief Constable’s report should also highlight:
- Notable practice
- Planned improvements
- Feedback from external audits
- Recommendations for the future monitoring of health and safety.
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It is likely that the most effective format for the annual report would be to follow the HSG guidance and be structured so as to report upon;
- Policy
- Organisation
- Planning
- Measurement
- Audit
- Review
7 / Risk Analysis
7.1
7.2 / The Act will inevitably lead to an increased likelihood of prosecution for corporate manslaughter in the event of fatal accidents Given the enormous risk to the reputation of Police Authorities inherent in any such prosecution an even greater emphasis should be placed on health and safety in the Constabulary.
The Committee should always bear in mind that while it is the health and safety practices of the Constabulary that will be scrutinised in the event of a fatality and that it is the Constabulary that would be the subject of a prosecution it would ultimately be the Hampshire Police Authority that would be liable if there was a relevant breach of the duty of care
Background Information
The following documents disclose the facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of the report:
- Corporate Manslaughter and Corporate Homicide Act 2007
- Corporate Manslaughter and Corporate Homicide Act 2007-Guidance Notes
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