03-04-2008
Manage risks to avoid corporate manslaughter prosecution, says BPE Solicitors
Corporate and employment experts at BPE Solicitors have joined forces to urge businesses to make health and safety a key priority with the introduction of a new offence of corporate manslaughter in April.
The new Corporate Manslaughter and Corporate Homicide Act 2007 comes into force on April 6, making it easier for companies and other large organisations to be prosecuted when a corporate management failing has led to someone’s death.
Companies, partnerships, trade unions and public bodies can be found guilty of the new offence if the way in which they are run by senior management, amounts to a breach of duty of care owed to staff, members of the public or other individuals.
The definition of “senior management” is likely to vary depending upon the size and structure of the businesses concerned. To secure a conviction the organisation’s conduct must fall far below what could reasonably have been expected in the circumstances.
A jury will consider issues such as whether an organisation failed to comply with health and safety guidance, how high the risk of death was and the seriousness of the failure.
The new offences only cover organisations and there is no new offence for which an individual may be found guilty, although company bosses and managers will continue to be held to account through existing health and safety laws.
Over the past 20 years there have been several unsuccessful attempts to prosecute large businesses for the common law offence of gross negligence manslaughter. Often these prosecutions failed because it was impossible to prove the “directing mind” of the business responsible for causing the death.
“Trade unions and other groups have lobbied for this change in the law for many years. The Act removes the key obstacle for convicting larger companies, namely the need to convict the individual in the company who is responsible for Health and Safety. The new legislation will undoubtedly place an even more onerous burden on hard-pressed businesses,” said BPE’s Employment Partner Darren Sherborne.
“Now would be a good time to audit health and safety policies and procedures so that businesses can reinforce their culture of proactive health and safety management, address any identified weaknesses and train staff prior to the changes being introduced in April,” added Darren.
Corporate Partner Tim Ward, who advises some of the South West’s leading entrepreneurial businesses, said: “With the possibility of unlimited fines being imposed on companies convicted of corporate manslaughter, which may be payable over a number of years, falling foul of the new Act could mean a huge payout, not to mention long-term damage to a company’s reputation.
“As well as imposing a fine the Court can also impose a “publicity order” requiring the organisation to publicise the conviction. Although these orders are not likely to come into force immediately they are likely to seriously affect a company’s future trading position,” added Tim.
Further details on the Corporate Manslaughter and Corporate Homicide Act 2007 are available at www.justice.gov.uk. Practical tips on how to prepare for the new Act can be found on Darren Sherborne’s blog.
The new Corporate Manslaughter and Corporate Homicide Act 2007 comes into force on April 6, making it easier for companies and other large organisations to be prosecuted when a corporate management failing has led to someone’s death.
Companies, partnerships, trade unions and public bodies can be found guilty of the new offence if the way in which they are run by senior management, amounts to a breach of duty of care owed to staff, members of the public or other individuals.
The definition of “senior management” is likely to vary depending upon the size and structure of the businesses concerned. To secure a conviction the organisation’s conduct must fall far below what could reasonably have been expected in the circumstances.
A jury will consider issues such as whether an organisation failed to comply with health and safety guidance, how high the risk of death was and the seriousness of the failure.
The new offences only cover organisations and there is no new offence for which an individual may be found guilty, although company bosses and managers will continue to be held to account through existing health and safety laws.
Over the past 20 years there have been several unsuccessful attempts to prosecute large businesses for the common law offence of gross negligence manslaughter. Often these prosecutions failed because it was impossible to prove the “directing mind” of the business responsible for causing the death.
“Trade unions and other groups have lobbied for this change in the law for many years. The Act removes the key obstacle for convicting larger companies, namely the need to convict the individual in the company who is responsible for Health and Safety. The new legislation will undoubtedly place an even more onerous burden on hard-pressed businesses,” said BPE’s Employment Partner Darren Sherborne.
“Now would be a good time to audit health and safety policies and procedures so that businesses can reinforce their culture of proactive health and safety management, address any identified weaknesses and train staff prior to the changes being introduced in April,” added Darren.
Corporate Partner Tim Ward, who advises some of the South West’s leading entrepreneurial businesses, said: “With the possibility of unlimited fines being imposed on companies convicted of corporate manslaughter, which may be payable over a number of years, falling foul of the new Act could mean a huge payout, not to mention long-term damage to a company’s reputation.
“As well as imposing a fine the Court can also impose a “publicity order” requiring the organisation to publicise the conviction. Although these orders are not likely to come into force immediately they are likely to seriously affect a company’s future trading position,” added Tim.
Further details on the Corporate Manslaughter and Corporate Homicide Act 2007 are available at www.justice.gov.uk. Practical tips on how to prepare for the new Act can be found on Darren Sherborne’s blog.
