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LEGISLATION |
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The Corporate Manslaughter and Corporate Homicide Act 2007 was rescued at the 11th hour when a compromise was finally agreed between the Commons and the Lords on the question of death in custody. The Act does include duties of care owed to persons in custody, but the part of the Act extending the duty that far will not come into force with the rest of the Act. It will instead be subject to the affirmative resolution procedure. This means that, whereas most of the Act will come into force on 6 April 2008 by means of an order of the secretary of state, the relevant subsection will only be brought into force if approved by resolutions of both the Commons and the Lords. This extension is expected to be made within 3 years. The new Act abolishes the common law offence of gross negligence manslaughter so far as it applies to companies and other organisations within the Act. It replaces it with a statutory offence of corporate manslaughter (corporate homicide in Scotland). There are four elements to the offence: 1. The company owes a relevant duty of care to the victim. This reflects the position under the common law, so that a company owes the duty where it employs a person, where a person is on its land, where it supplies goods or services to a person, when constructing buildings etc, and when it carries out other activities on a commercial basis. There are various “public policy” exceptions to this, so that public authorities making policy decisions or carrying out policing and law enforcement activities, and the Ministry of Defence, the emergency, child-protection and probation services in carrying out their functions do not owe this duty. This is not a wholesale exemption under the Act (it does not exempt these bodies from their duties as employers or occupiers of premises), but it does include situations in which it would not be reasonable to hold the body liable for a person’s death, such as administering emergency treatment to a patient or attempting to rescue a person from a burning building. 2. The company breached that duty as a result of the way in which its activities were organised or managed (the “management failure”). A substantial factor in the breach must be the conduct of the company’s senior management (i.e. people who play a significant role in all or a substantial part of the company’s activities). 3. The management failure must have caused the victim’s death. It does not need to have been the only cause. 4. The management failure must amount to a gross breach of the duty of care. A breach is “gross” if it falls far below the standard that could have reasonably been expected. The Act sets out a number of factors for the jury to consider when reaching its decision. A company found guilty of this offence will be liable to a fine. The court will also be able to order the company to alter any policies and practices that caused the victim’s death, to prevent any similar incidents in the future. As a further deterrent to companies, the court will be able to require the company’s conviction and punishment to be publicised. The new Act will come into force on 6 April 2008, with the exception of the extension of the duty to persons in custody which is expected to come into force within 3 years. |
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Corporate Manslaughter and Corporate Homicide Act receives Royal Assent See CLM: ¶2591, ¶7178 |