090828-Corporate Manslaughter and Corporate Homicide Actioshhongkong.com/presentations/090828-Corporate_Manslaughter_and... · The Corporate Manslaughter and Corporate Homicide Act

Corporate Manslaughter and CorporateCorporate Manslaughter and Corporate Homicide Act 2007

Stuart Allan

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Corporate Manslaughter –“Directing Mind”Directing Mind

Prior to 2008, for a charge of corporate manslaughter to be successful, the “directing mind”, ie, the individual whose actions lead to the deaths had to be identifiedto the deaths had to be identifiedOpen to interpretation but case law would suggest managing director board ofsuggest managing director, board of directors, chief executive, company secretary or other senior officer

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Very difficult to identify in large, complex organisations


R. v Kite and OLL Ltd


The Corporate Manslaughter and Corporate Homicide Act 2007Corporate Homicide Act 2007

Came into force on 6th April 2008 “This important UK-wide legislation is a major step forward for protecting consumers and workers from grossly negligent corporations ”from grossly negligent corporations.

Paul GogginsCriminal Justice Minister

Investigations will be led by the police Any proceedings for corporate manslaughter

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will be the responsibility of:-Crown Prosecution Service in England and Wales,the Procurator Fiscal in Scotland the

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the Procurator Fiscal in Scotlandthe Public Prosecution Service in Northern Ireland.

The Offence

For an offence to be committed in terms of the Act:-

the organisation must have owed a relevant duty of care to the victimcare to the victima “gross” breach of that duty of care resulting in the victim’s death must be demonstrateda substantial part of the gross breach of duty can be attributed to “ …the way in which its activities are managed or organised by its senior

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are managed or organised by its senior management”.


Relevant Duty of Care

Caparo Industries plc v. Dickman [1990] 2 AC 605. This case led to the establishment of the “ h f ld ”“three-fold test”:-

harm must be a “reasonably foreseeable” consequence of the defendant’s actionsconsequence of the defendant s actionsa relationship of “proximity” between the defendant and the claimant must exist

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it must be “fair, reasonable and just” to impose liability on the defendant.

Excludes statutory duties imposed by healththeUNIVERSITYofGREENWICH

Excludes statutory duties imposed by health and safety legislation

Gross Breach

A gross breach of a relevant duty of care will occur where the breach of that duty

“…falls far below what can reasonably be expected of the organisation in the circumstances”of the organisation in the circumstances

With terms like “far below” and “can reasonably be expected”, establishing grossreasonably be expected , establishing gross breach may not be an easy task to achieve It will fall to the jury to decide whether or not

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j ysuch a breach has taken place.


Health and Safety and Other LegislationLegislation

The Act requires the jury to consider:-whether the organisation failed to comply with any health and safety legislation relating to the breach of duty and, if so,of duty and, if so, how serious was that failure and how much of a risk of death it posed.


The Jury

The jury may consider how much the attitudes, policies, systems or accepted practices contributed to or encouraged the failure or developed a tolerance to itfailure or developed a tolerance to it. They can have regard of any health and safety guidance relevant to the allegedsafety guidance relevant to the alleged breach of duty.The jury can also have regard to any other

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The jury can also have regard to any other matters they think relevant


The Role of Senior Management

It must be shown that the death or deaths arose due to the way the senior management of an organisation managed or organised its activitiesactivitiesIt must be shown that the culture of the organisation was in the main responsible fororganisation was, in the main, responsible for the fatality(ies)


Penalties

The main penalty is an unlimited fine.Since this penalty can already be imposed in respect of health and safety contraventions (f l T fi d £1 illi(for example, Transco fined £15 million following a gas explosion in Scotland), the additional financial deterrent introduced byadditional financial deterrent introduced by the Act is difficult to establish.


Remedial Orders

The Prosecution may make an application for a remedial order requiring the organisation to remedy:

th l t b hthe relevant breachmatters arising from the breach that appear to the court to be the cause of deathany deficiencies in the organisation’s health and safety policies, systems or practices.


Remedial Orders

A remedial order must specify a time by which the measures contained in the order are to be complied with M i h i i id hMay require the organisation to provide the enforcement authority with evidence that it has been complied withhas been complied withIt is an offence to fail to comply with a remedial order.

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remedial order.


Publicity Order

An organisation that has been successfully prosecuted for corporate manslaughter or homicide to publicise that fact in a specified mannermannerThe “Publicity Order” can include:-

the convictionthe convictiondetails of the offencethe level of fine imposed

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pthe requirements of any remedial order imposed


Individual Liability

The Act prohibits any individual liability for the offence of corporate manslaughter or corporate homicideTh h f liThe charge of gross negligence manslaughter can still be brought against individuals held responsible for the deaths ofindividuals held responsible for the deaths of othersThe “individual” offences (for example,

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The individual offences (for example, Sections 7 and 37 of the HSWA) included in health and safety legislation will also still


apply.

Controversy

Failure to include prosecution of individual directors and other senior managers Little additional incentive for company

i k i i h l hexecutives to take a greater interest in health and safetyF t l htFocus on corporate manslaughter or homicide is too narrow.


Controversy (continued)

Relationship between the police, the Crown Prosecution Office and the Health and Safety Executive (and other enforcing authorities) in prosecutions for corporate manslaughter hasprosecutions for corporate manslaughter has yet to be established - in England and Wales, prosecutions for corporate manslaughterprosecutions for corporate manslaughter cannot be initiated without the consent of the Director of Public Prosecutions

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The inclusion of public bodies, charities and other non-profit making


Other Countries - Canada

Following the deaths of 26 workers at the Westray Coal Mine explosion in 1992 Canada extended its existing Criminal Code to specifically include organisationsspecifically include organisations. The Canadian approach differentiates between crimes of negligence and crimes ofbetween crimes of negligence and crimes of intent or knowledge


Other Countries - Australia

In Australia the Criminal Code Act of 1995 sets out the general principles of criminal responsibility, including corporate criminal liabilityliability. At this time, only the Australian Capital Territory has enacted specific legislationTerritory has enacted specific legislation dealing with corporate manslaughter, Crimes (Industrial Manslaughter) Amendment Act

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( g )2003.


Australia (continued)

A similar piece of legislation was introduced to the Victorian Parliament but blocked by its Upper HouseTh f K i R dd h iThe government of Kevin Rudd has given positive signals about the introduction of a nationwide industrial or corporatenationwide industrial or corporate manslaughter act but at the moment there is little sign of anything concrete in the near

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g y gfuture


Other Countries - General

Differing legal systems makes comparison between countries difficult In most countries, the general criminal codes h b f ll d hhave been successfully used where individuals have been found guilty of manslaughter or homicide arising from workmanslaughter or homicide arising from workPenalties vary significantly from country to country, ranging from fines and

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country, ranging from fines and rehabilitation, to imprisonment for varying terms right through to capital punishment



Summary

Raises and revitalises the safety debate Bad publicity Symbolic



Conclusion

A legislative dead end, or the promise of better things to come?


Documents

090828-Corporate Manslaughter and Corporate Homicide Actioshhongkong.com/presentations/090828-Corporate_Manslaughter_and... · The Corporate Manslaughter and Corporate Homicide Act