Government soft-pedals law on corporate killing

In May 2003 the UK Government published proposals to legislate against death caused by management failure.

In May 2003 the UK Government published proposals to legislate against death caused by management failure.

Although it might have been expected that this proposed "corporate manslaughter" legislation would be included in the Queens Speech on 26th November 2003, it was notably absent.

However, this does not mean that the idea has been shelved altogether; it simply implies that it is a lower priority for a Government that has set itself an extremely busy schedule for the next Parliamentary session.

Indeed, it is thought that Home Secretary David Blunkett is keen to keep up the momentum following the publication of the proposals in May.

In a press release issued soon after the Queen's Speech, the Home Office stated: "The Home Office will also be bringing forward proposals on corporate manslaughter before the end of the year with a view to publishing draft legislation early in the new year".

Several times in the last few years, newspapers have carried stories about corporate manslaughter (or corporate killing, as headline writers prefer).

Some of these stories have related directly to fatalities where there have been prosecutions and convictions, though these are usually for offences less serious than manslaughter.

Other stories, however, have called for new legislation on corporate manslaughter that will target companies that cause death through gross negligence.

In May 2003, Home Secretary David Blunkett said: "There is great public concern at the criminal law's lack of success in convicting companies of manslaughter where a death has occurred due to gross negligence by the organisation as a whole".

He went on to add that the law must "bite properly on large organisations whose failure to set or maintain standards causes a death".

Nevertheless, companies who already conform with all applicable health and safety legislation need have nothing to fear, and the stated intention is to place no new burdens on conforming companies.

Directors will also be pleased to hear that the criminal liability of directors will not be targeted by the new proposals.

Three years ago the Government published a consultation paper on reforming the law on involuntary manslaughter, which can be read on the Home Office website.

This paper contains a chapter on corporate killing and it refers to several incidents for which corporate bodies have been found to have been at fault, including the Herald of Free Enterprise disaster, the Kings Cross fire, and the Clapham and Southall rail crashes.

Although English law has seen a small number of corporations prosecuted for manslaughter, the general feeling is that there should have been more.

A new offence of corporate killing has been proposed in line with recommendations from a Law Commission report as follows.

There should be a special offence of corporate killing, broadly corresponding to a separate proposed offence of killing by gross carelessness.

The corporate offence should (like the individual offence) be committed only where the corporation's conduct in causing death fell far below what could reasonably be expected.

The corporate offence should not (unlike the individual offence) require that the risk be obvious or that the defendant be capable of appreciating the risk.

A death should be regarded as having been caused by the conduct of the corporation if it is caused by a "management failure", so that the way in which its activities are managed or organised fails to ensure the health and safety of persons employed in or affected by its activities.

Such a failure will be regarded as a cause of a person's death even if the immediate cause is the act or omission of an individual.

That individuals within a company could still be liable for the offences of reckless killing and killing by gross carelessness as well as the company being liable for the offence of corporate killing.

While there may be difficulties in proving "management failure", the Government believes that adopting these proposals will place a new and beneficial emphasis on health and safety issues in the workplace.

Another of the Law Commission's recommendations that the Government has proposed adopting relates to alternative verdicts.

In particular, that it should be possible for the jury, if they find a defendant not guilty of any of the proposed offences, to convict a defendant of an offence under section 2 or 3 of the Health and Safety at Work Act 1974, as amended.

Clearly it is the Government's intention that companies complying with current health and safety legislation need do nothing more, though there will be a new interest in maintaining management systems so as to avoid the "management failure" to which the Government's proposals refer.

Further developments relating to the new legislation will be reported in the Safety Update e-mail newsletter that is circulated free-of-charge by Pilz.

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