Involuntary Manslaughter and Corporate Killing
A long-overdue revision of the law of Manslaughter finally came into effect on 6th April 2008. How RoSPA can help?
The legislation emerged from Parliament a decade after the Government said it would look at corporate manslaughter
RoSPA welcomed the change in the law, not just to secure justice for victims, but to make it clear that the full weight of criminal law will be brought to bear on organisation - of all of sizes - that cause death by behaving recklessly.
There is, of course, a need for balance between regulators focussing on enforcement and punishing for gross neglect or incompetence and taking other forms of action that will enable organisations to manage their risks and prosper without causing preventable injuries and deaths.
The Government has said that the number of corporate manslaughter prosecutions is likely to be small, with the offence being reserved for the very worst cases in which standards have fallen far below what might have been reasonably expected.
But, together with the benchmark guidance on directors' health and safety responsibilities from HSE and Institute of Directors, (Leading Health and Safety at Work), the revision of the manslaughter law to make it easier to prosecute organisations will still have tremendous value, with the fear of prosecution serving as a driver for ensuring good health and safety practice throughout all UK organisations.
The scale of penalties for a conviction is suggested as being between 5 and 10 percent of turn over averaged over the previous three years. If implemented these will make as the limited number of multi-million pound fines for health and safety breaches seem mild in comparison. The Act also allows for publicity orders and remedy orders to be imposed. Corporate reputation, of both public and private sector organisations, could be severely damaged by a prosecution and publicity ordered by the courts, with a potential loss of business and plummeting share prices.
And while strictly speaking the new offence itself only targets organisations and not individual directors or senior managers, investigations following work related deaths will lead to the behaviour of senior individuals coming under much greater scrutiny than before. Changes to annexes to the HSE's "Enforcement Policy Statement" (which have not been widely publicised) make it clear that in future the HSE will always consider prosecuting directors when their companies are being dealt with under health and safety law.
With the new HSE/IoD guidance setting the benchmark, it would be wise to expect more prosecutions against individuals, as well as organisations. Directors therefore are now clearly much more under the health and safety spotlight than hitherto.
Crucially, however, it is important to offer reassurance that the revised law on corporate manslaughter sets no new standards of occupational health and safety management.
Corporate manslaughter closes a justice gap in but prevention, rather than vengeance, is RoSPA's guiding principle, and organisations that already take their health and safety obligations seriously have nothing to fear.
How RoSPA can help
RoSPA's events help directors to understand their own direct responsibilities for any failures to protect their staff.
Conference: Developing leadership action – delivering on directors' health and safety responsibilities
Course: Director Involvement in Health and Safety - one day training course, Birmingham.
For more information on our Director's duties events please call: Training courses: +44 (0)121 248 2233 and Conferences & seminars: +44 (0)121 248 2120
Why it was needed
Although over 27 million days are lost annually 1 due to work related injuries and ill- health the UK is nevertheless a world-leader in work-related risk management, an enviable position reached as the result of a comprehensive safety system comprising a framework of pioneering legislation; codes of practice; proportional enforcement by the Health and Safety Executive; director leadership and workforce involvement; competent advice from health and safety professionals; media and shareholder interest; and safety training and qualifications.
RoSPA is among the organisations that have made valuable inputs into this system and, of course, there is still a long way to go to ensure it reaches all parts of the UK economy, especially small firms. For 100 years, the Society, which is committed to saving lives and reducing injuries, has helped shape legislation and management standards, including the Health and Safety at Work Act 1974, and guidance such as BS8800. It has highlighted emerging issues, such as Managing Occupational Road Risk, and sought to turn theory into practice through a wide variety of training courses.
Campaigning for a change in the law around corporate manslaughter has been another key input. Despite the UK's well-developed occupational safety and health system, there is room for improvement, especially in re-emphasising the responsibilities of board level directors and senior managers for leading effective health and safety management in their organisations.
The imbalance in recent years between successful manslaughter prosecutions of directors in small as opposed to large firms is one such example of where things could be better. It has proved easier to convict smaller companies as well as their senior staff under existing manslaughter legislation, which links a company's guilt to that of an individual "controlling mind", because lines of control are short and directors are more or less directing work at first hand.
When larger companies have been involved, however, such prosecutions have faltered because safety governance responsibilities can be spread over several layers of management, making it difficult to prove that particular individuals were responsible for a death.
Although successful prosecutions under the revised law of manslaughter will still require evidence of senior management failure, it is the body corporate that will be liable, rather than individual directors. Individuals may still be charged with the existing offence of manslaughter. And of course there are likely to be parallel Health and Safety at Work Act prosecutions, including prosecutions of directors and senior managers under Section 37 if offences have involved 'their consent, connivance or neglect'.
At a glance guide to Health and Safety Statistics 2012/13, HSE