Manslaughter

THE CORPORATE MANSLAUGHTER
& CORPORATE HOMICIDE ACT 2007
QBE ISSUES FORUM NOVEMBER 2007

THE ‘DON’T KILL BILL!
’
THE CORPORATE MANSLAUGHTER
& CORPORATE HOMICIDE ACT 2007

QBE believe that best practice organisations are those where senior individuals facilitate and engage
in the robust management of health and safety. We pro-actively encourage our clients to set in place
the necessary organisational structure, systems and strategies to meet their moral, legal and
financial obligations.

The question of how to hold organisations to account after major disasters has been the subject of an ongoing debate for
many years. The Zeebrugge ferry disaster, which led to the deaths of more than 150 passengers and nearly 40 crew, some 20
years ago, brought the issue firmly into the public spotlight with the public enquiry identifying “a disease of sloppiness” and
negligence at every level of the company’s hierarchy. Despite an inquest jury returning verdicts of unlawful killing, there were
no convictions of individual or corporate manslaughter.
The present government has been planning for almost 10 years to introduce tough legislation to take organisations to task
when serious failings in health and safety lead to the death of an individual. The result is the Corporate Manslaughter &
Corporate Homicide Act 2007, which received Royal Assent on 20 July 2007 and will come into full force on the 6th of April
2008. This issues forum will explore the provisions and implications of the new Act, and look at the framework of measures
senior management should already have in place to ensure the effective health, safety and welfare of their employees,
keeping them from under the spotlight of prosecution.

2

THE CORPORATE MANSLAUGHTER & CORPORATE HOMICIDE ACT 2007 NOVEMBER 2007

WHAT IS THE CURRENT
POSITION?
The current law of corporate
manslaughter links an organisation’s
guilt to the gross negligence of an
individual who is said to be the
embodiment of the organisation. It
has proved very difficult to prosecute
large organisations. Since 1992, there
have been 34 prosecutions for
corporate manslaughter of which only 6
have resulted in conviction. Notably,
the only successful prosecutions have
involved small companies where the
individual in question was intimately
involved in the health and safety
activities.
A company may also be found guilty
WHAT OFFENCE WILL IT CREATE? of breaching the main provisions of
The Act creates a new statutory the Health & Safety at Work Act etc
offence in England, Wales and 1974 (HSWA) if it has failed to take all
Northern Ireland of “Corporate reasonably practicable steps to ensure
Manslaughter”, and “Corporate the health and safety of its employees
Homicide” in Scotland. Corporate and those affected by its business.
manslaughter is a term used in English This duty of care obviously extends
Law to reflect an act of homicide to fatalities and can lead to unlimited
committed by a company as opposed fines. The HSWA contains provisions
to an individual. In a case following the to find directors, officers and managers
Zeebrugge ferry disaster, the court of personally liable and potentially
appeal confirmed in principle that a subject to imprisonment, where a
company can commit manslaughter, health and safety offence has been
albeit that all the individual defendants committed by the company with
in that case were acquitted. their consent or connivance, or is
attributable to their neglect.
An organisation will be guilty of the
offence of corporate manslaughter WHY THE NEED FOR CHANGE?
if the acts or omissions of senior
management cause a person’s death. With manslaughter charges and
The failing could be either a single or unlimited fines already a possibility
series of errors, which directly lead to a under current health and safety
gross breach of the duty of care owed legislation, this is a valid question.
by the employer to the deceased. The answer may partly lie in the
current social climate where individual
responsibility is increasingly seen to
be hidden behind the façade of large
organisations, which themselves cannot
be taken appropriately to task. Fines
solely levied against organisations
are not seen to be an appropriate
punishment for a fatality, where the

3


individual is seen as an innocent party. WHAT DOES THE NEW ACT DUTY OF CARE
This view has been heightened by the
ACTUALLY CHANGE? The key elements of the existing
media after similar cases to Zeebrugge
For all the attention this piece of framework for corporate manslaughter
such as Piper Alpha, the Kings Cross fire
legislation has received, it actually are retained with the new Act i.e. the
and the Southall rail crash, where
brings with it no new legal obligations organisation must have owed a duty
attempts to prosecute these corporations
for employers. What it does do is allow of care to the deceased, there must
and their senior management under the
for the accumulation of what might have been a breach of that duty and
law of gross negligence manslaughter
be a series of collective errors to the breach must be “gross”. In cases
came under significant difficulty and
demonstrate that the defendant was where an employer is charged with the
ultimately failed.
deficient in managing an effective death of an employee, the existence
The difficulty with the existing law of of a relevant duty of care will nearly
health and safety management system.
corporate manslaughter is that it does always be straightforward. However,
The main focus of the Act is to
not reflect the realities of the modern some scenarios could potentially
establish the grounds upon which an
corporate environment. Before a involve a number of organisations with
organisation, rather than an individual,
company can be found guilty, an overlapping duties e.g. construction
can be found guilty of the offence of
individual who is a “controlling mind” projects. This could lead to cases with
corporate manslaughter. Moving away
of the organisation must first be found multiple defendants. It is also possible
from the need for an individual
personally guilty of the offence. It is that safety consultants and related
“controlling mind” to be identified,
this “identification principle” that has experts could be included among
an organisation will be guilty of the
led to serious difficulties in prosecuting defendants if their advice or services
offence if the way in which its activities
medium to large organisations with are deemed deficient. Regulatory
are managed or organised by senior
diffuse management/corporate bodies such as the HSE are excluded
management amounts to a gross
structures, and where health and safety (except for their own employees), and
breach of the duty of care owed to
has traditionally been delegated to a there are special provisions limiting
a person, and that breach results in
lower tier of management and health the duty of care owed by the
the person’s death. The prospect of
& safety professionals rather than the emergency services.
individual liability under the Act is
controlling/directing mind. Under the
specifically excluded. It should be noted that the duty of
present law, it is not possible to add up
The intention of the Act is not to let care is not just to employees but will
the negligence of several individuals
individual directors off the hook but also apply to third parties arising from
to show the company as being grossly
rather seeks to encourage management operations, including as occupier of
negligent. In reality it is always likely to
to adopt an approach of collective premises, construction and maintenance
be the combined acts or omissions of
senior management responsibility work, supply of goods and services,
individuals and/or processes, none of
for issues of health and safety that use of vehicles and plant, and all
which can individually be qualified as
permeates the organisation rather commercial activities. For example,
manslaughter, which lead to a fatality.
than being concentrated in a single in relation alleged fatalities caused
It is telling that in recent times the by the supply of defective products,
department or individual. All company
courts have awarded more significant manufacturers and suppliers will be
directors and senior managers will now
fines for breaches of health and safety required to demonstrate systems in
be required to take an active interest
legislation. It may well be that these place for safety and quality checks on
in these matters and to ensure
fines have been in response to the all supplied parts and ingredients as
that health and safety is a prime
difficulties of bringing corporate well as the finished product. Product
consideration in their business if they
manslaughter charges under the recall procedures will be required
wish to avoid seeing their actions, or
current legal framework i.e. a where goods have been supplied
omissions, result in a court appearance
perceived need to over-compensate that are potentially faulty.
should a fatal accident arise from a
to satisfy public demand.
“gross breach” of their duty of care
in this regard.

4


GRAVITY THRESHOLD FOR PENALTIES
BREACH OF DUTY In addition to an unlimited fine, the
Breach of a duty of care is to be Act introduces a power for the courts
regarded as “gross” if the organisation’s to impose a remedial order on a
conduct falls “far below what can convicted organisation to force it to
reasonably be expected of the resolve any management failure that
organisation in the circumstances”. may have been a cause of death.
Given the potential for wide Arguably the most effective aspect
interpretation of this standard, the Act of the act will be to reclassify conduct
provides further guidance in applying already an offence, under existing
the “gravity threshold”. Factors that a legislation, with the more stigmatising
jury will be required to consider include: term of corporate manslaughter
• Whether the organisation failed to (corporate homicide in Scotland). If
comply with any relevant health there was any doubt that a prosecution
and safety legislation. under the new law would not attract
the desired attention, the Act allows
• If they did, how serious was the for “publicity orders”. This will allow
failure and how much of a risk of the courts to force convicted
death did it pose? organisations to publish details of their
• The extent of the organisation’s offence and penalties at their expense.
compliance with relevant health
and safety guidance.
• Whether the evidence shows that
there were
“…attitudes, policies, systems
or accepted practices within the
organisation that were likely to
encourage any such failure or to
have produced tolerance of it.”
In addition to the guidelines here,
employers would be well advised to
consider the sentencing factors used in
previous health and safety prosecutions.
For example, in the case of R&F Howe
& Son (Engineers) Ltd (1999) Mr Justice
Scott Baker suggested that the more
serious aggravating features of a
prosecution would include: putting
profit before safety; failing to heed
previous warnings; deliberate or
reckless breach of safety; and how far
short of an appropriate standard the
defendant fell.

5


IMPACT
In a regulatory impact assessment of
the Bill, the Home Office estimated that
the new Act will result in the number of
prosecutions for the offence of
Corporate Manslaughter rising from the
current one or two to around 10-13
additional prosecutions a year. This
would represent prosecutions for 3-4%
of work-related deaths. The cost of
prosecuting and defending these
actions will inevitably rise from current
levels, given that the scope of the
investigation required to identify the
“management and organisation of
activities” and the “attitudes, policies,
systems or accepted practices within
the organisation” seems likely to
require a great deal of time and effort,
not to mention disruption to the day IMPLICATIONS FOR SENIOR clearly documented safe working
to day working of the organisation in procedures, relevant training and
question, during the period of MANAGEMENT
competence but also that these
investigation. It is also arguable that it The new legislation serves to highlight processes were stringently applied
will be easier to find companies guilty and re-enforce the importance of across the organisation and regularly
of the offence when the conviction of addressing health and safety issues reviewed to ensure that they were
a director, with direct responsibility for at a high level. Directors and other at all times a good fit to changing
the breach of duty, is no longer a pre- “senior management” should take the circumstances. That is to say that they
requisite to the conviction of the company opportunity to review the management are “managing the activities” of the
for the offence of manslaughter. Fines are of, and responsibilities for, health and organisation as the Act implies should
likely to be set at a level at least equal to safety in their own organisations and be the case. The evidence reviewed
those currently levied on organisations ensure they have appropriate and will demonstrate more than compliance
found guilty of breaches of the HSWA effective health and safety processes. with legislation but also effective
that result in a fatality. The management system should implementation and improvement
Perhaps of greater concern is the identify the appropriate structure, staff when the need arises.It may also prove
stigma likely to be attached to an responsibilities, competencies and necessary to periodically call upon the
organisation found guilty of the new culture combined with a pro-active services of external health and safety,
offence, and the potential auditing framework that demonstrates and risk management experts in order
consequences for its reputation and conformity and seeks continual to benchmark and validate organisations’
brand image. A key threat arising from improvement. endeavors against best practice.
a prosecution will be the harm that it Senior managers will not be able to Particularly important will be to ensure
might have on the company’s brand, demonstrate that they have discharged that procedures, expected standards
particularly in today’s climate where their duties by simply delegating and practices are communicated and
supplier chain integrity is of paramount health and safety responsibilities to demonstrated to employees and other
importance. Indeed, one can more junior managers and health and potentially affected persons in a clear
hypothesise that marketing safety professionals. They are to be and effective manner so as to help
departments may, for the first time, encouraged to display leadership and formulate the necessary “attitudes…
take an interest in their organisations’ play active individual roles in health and accepted practices” (a clear
approach to health and safety and safety strategies and demonstrate reference to safety culture) within
management! not only appropriate risk assessments, an organisation.

6


The Act fails to fully define the sort of
“health and safety guidance” to which
an organisation might be expected to
have consulted and acted upon in the
context of an alleged breach but this
will undoubtedly include material such
as ACOPs, HSE Guidance and British
Standards. There may also be no
restrictions on a jury looking at wider
industry guidance, research reports
etc. The HSE website will provide a
useful starting point, with its facility
for searching by industry type or health
and safety topic. Organisations under
the spotlight will be hoping that the
courts and juries take a pragmatic
and realistic view on the issues of
foreseeability and what is reasonably
practicable in the unique and particular
business circumstances they may face.
It is also important to remember that KEEPING UP TO DATE – TIME TO TAKE ACTION?
while the new law has no impact on
individual liability, prosecutors will still CONTINUOUS IMPROVEMENT The good news is that the explanatory
be able to target directors and senior The Act effectively requires of notes to the Bill state: “There is
executives for gross negligence in the organisations that they make, and no question of liability where the
conduct of their management roles for their own sake record, every effort management of an activity includes
under Section 37 of the HSWA. Also, to keep abreast of developments reasonable safeguards and a death
the new Act will be in addition to, and in health and safety in their line of nonetheless occurs”. With the provisions
will not replace the existing Scottish business. Organisations, on completion of the Act not due to come into force
offence of Culpable Homicide, and the of their risk assessments, should review until April of next year, there is time
existing Common Law manslaughter and introduce new engineering and yet for organisations to address any
offence under which individuals and other “higher order” hierarchical shortcomings in their governance
directors / owners of small businesses solutions through product or process structure, policies and systems. It must
have previously been successfully to minimise the risk of identified be recognised, however, that
prosecuted for manslaughter offences. hazards. Trend analysis of incidents company-wide attitudes and accepted
should include corrective actions to practices may take more time to
reduce future occurrence or severity. change.

For the majority of organisations
with registration to a recognised
management system e.g. ISO 9001,
ISO14001 or BS OHSAS 18001, the
process of Plan, Do, Check and Act
to improve will be recognised.

7


GUIDANCE FOR DIRECTORS COMPLIANCE
AND BOARD MEMBERS Taking a basic compliance approach,
“Revitalising Health & Safety” was the the general duty of care owed by
joint Government and HSE strategy, employers to employees and others
launched in 2001, to inject some affected by their business is outlined
impetus into the health and safety under the HSWA and further expanded
agenda. At that time they produced on in the Management of Health and
guidance, within the context of wider Safety at Work Regulations (MHSWR).
corporate governance, outlining Some of the basic framework
directors’ and board members’ requirements are as follows:-
responsibilities for Health and Safety • The HSWA requires that you need to
(INDG343). While guidance does not prepare, and make sure your workers
hold the same legal weight as statutory know about, a written statement of
duties or Approved Codes of Practice, your health and safety policy and the
in the context of establishing grounds arrangements in place to put it into
for a prosecution under the new Act, it effect.
will be highly relevant. In the guidance,
five main principles were set out:- • These general duties on employers
are expanded and explained in the
1. The board must accept formally MHSWR, which include requirements
and publicly its collective role in for employers to assess the work-
providing health and safety leadership; related risks faced by employees and
2. Each member of the board needs by people not in their employment;
to accept their individual role in • To have effective arrangements
achieving this; in place for planning, organising,
3. All board decisions must reflect controlling, monitoring and
WHAT DOES SENIOR
the intentions expressed in their reviewing preventive and
MANAGEMENT BEST protective measures;
health and safety policy statement;
PRACTICE LOOK LIKE? • To appoint one or more competent
4. The board must recognise its role
While there has been much attention in engaging the active participation persons to help in undertaking the
to the arrival of the new legislation, of workers in improving health measures needed to comply with
there has been, as yet, little commentary and safety. health and safety law and;
on how an organisation and its senior • To provide employees with
management can mitigate the prospects 5. The board must be kept informed
of all risk management issues, comprehensible and relevant
of a successful prosecution against information on the risks they face
them. Inevitably, there is some uncertainty preferably by the appointment
of a health and safety director. and the preventive and protective
as to how the various tests for measures that control those risks.
establishing systemic management At the time of writing, the HSC in
failures will apply in practice and this conjunction with the Institute of
is likely to remain the case until Directors were due to publish updated
precedents are set and pored over. guidance for directors on their health
However, there is well established and safety responsibilities. This guidance
guidance out there as to what directors (INDG417) entitled Leading health and
and senior managers should be safety at work: leadership actions for
doing already. directors and board members is now
available for free download from the
corporate manslaughter pages of the
the HSE website.

8


MANAGEMENT SYSTEMS CONCLUSIONS AUTHOR BIOGRAPHIES
With the Act focussing on systemic Organisations who fail to recognise Mark Black, Liability Risk Manager
failures to manage health and safety in this Act as a significant and subtle Mark joined QBE in 1998 serving 6
organisations, it follows that the piece of legislation will do so at their years as a liability claims inspector
multitude of work-related hazards peril. It removes many of the barriers before joining the Liability Risk
requires a systematic approach to to a successful prosecution under the Management team in 2004. He holds
health and safety management. In existing legal framework and without an honours degree in Risk
recent years, one of the predominant question, stigma and reputation / Management and the Nebosh National
management tools has been formal brand damage will be the Act’s biggest Diploma in Occupational Safety and
occupational health and safety weapon. Demonstration of effective Health.
management systems. The reference management systems and a risk aware
Jonathan Coatman, Claims Controller
under the MHSWR to having effective safety culture are likely to be key
Jonathan is a liability specialist within
arrangements for planning, organising, battlegrounds at trial. The acts and
the QBE Strategic Claims team based
controlling, monitoring and reviewing omissions of senior individuals will be
in London. His role primarily involves
preventative and protective measures under the microscope as never before.
the management of claims with
(or Plan, Do, Check, Act) provides
FURTHER INFORMATION significant financial value in the areas
similarity of many familiar management
of employers' liability, public liability
systems approaches to health and More information can be found on the and professional indemnity. Jonathan
safety, such as HSG65 and BS OHSAS HSE website: www.hse.gov.uk and the also provides technical input to the risk
18001, which strive for continual full contents of the Act can be viewed at management, underwriting and
improvement as their overarching http://www.opsi.gov.uk/acts/acts2007/ actuarial functions within QBE and on
intent. The organisations that use a 20070019.htm behalf of external clients through
management system as a framework
briefing notes, articles and consultancy.
for being pro-active will be able to
demonstrate their integrity as opposed
to those organisations who use a QBE
certificate of accreditation as lip service. Plantation Place,
Organisations should be mindful of 30 Fenchurch Street,
hiding behind a veil of compliance London,
or third party certification to EC3M 3BD
management systems as all they
t: + 44 (0)20 7105 4000
need to do. The new legislation will
f: + 44 (0)20 7105 4019
be able to permeate and interrogate
organisations that pay lip service to enquiries@qbe-europe.com
such matters, demanding evidence www.QBEeurope.com
of a pro-active and holistic inter-
departmental management (i.e. non-
silo) approach to health and safety that
is embedded in the wider culture of
the organisation and led from the most
senior management positions.

9


Dear reader
Thank you for taking the trouble to read this publication.
QBE Risk Management believe that best practice organisations are those where senior individuals
facilitate and engage in the processes of sensible risk management. We make this document available to
all interest parties in an effort to share knowledge and promote good practise.
Our services are available only to clients insured by QBE in Europe. Our insurance products are sold
through insurance brokers. We cannot offer advisory services to anyone else, however we would be
delighted to hear if you have found this document useful or believe there are risk management issues that
do not receive appropriate attention in the media.
Regards
QBE Risk Management Team
email: RM@uk.qbe.com
www.QBEeurope.com/RM

Disclaimer
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QBE Insurance Group.
Readership of this Forum does not create an insurer-client, advisor-client, or other business or legal relationship.
This Forum provides information about the law to help you understand and manage risk within your organisation.
Legal information is not the same as legal advice.
This Forum does not purport to provide a definitive statement of the law and is not intended to replace, nor may it be
relied upon as a substitute for specific legal or other professional advice.
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Limited, no. 03153567 ('QMSUK') and QBE Underwriting Services (UK) Limited, no. 02262145 ('QSUK'), whose registered offices are at Plantation Place, 30 Fenchurch Street, London, EC3M
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