Archived decisions

Hampshire Fire and Rescue Authority

Governance Committee Item 4

28 March 2008

Corporate Manslaughter and Corporate Homicide Act 2007

Report by the Clerk

Contact: ( David Kelly 01962 846661)


1	Summary
1.1	This report highlights the impact of the Corporate Manslaughter and Corporate Homicide Act 2007 ("the Act") on the Hampshire Fire and Rescue Authority.
1.2	The Act applies where fatalities occur as a result of the way in which an organisation conducts its activities or as a result of the way in which the activities of the organisation are managed or organised by its senior management.

2	Recommendation
2.1	That the Committee note the content of this report

2.2	That the Chief Officer be asked to carry out a review of the existing health and safety arrangements in the Hampshire Fire and Rescue Service ("the Service") in the light of the new risk brought about by the Act.

2.3	That the Chief Officer be asked to prepare an initial report containing details of the findings of the review proposed under 2.2 and, in consultation with the Clerk detailed proposals for the ongoing reporting to the Authority on the efficiency and effectiveness of the health and safety arrangements within the Service


3	Introduction Error! Bookmark not defined.and Background
3.1	The Corporate Manslaughter and Corporate Homicide Act 2007 received Royal Assent on 26 July 2007 and will take effect on 6 April 2008. The implementation of the Act is a step towards more rigorous investigation of organisations for manslaughter following fatalities connected with the activities of a corporate entity - whether public or private.
3.2 3.3 3.4	The Act makes provision for a new offence of corporate manslaughter and for this to apply to companies and other incorporated bodies, Government departments and similar bodies, police forces, fire authorities and certain unincorporated associations. In the United Kingdom, over 40,000 people have been killed in commercially-related circumstances between 1966 and 2006 but under common law only 34 companies have been prosecuted for homicide and only seven convictions obtained. On average about 400 people (employees, self-employed people, and members of the public) are killed in incidents through the operation of commerce each year. Long-term deaths bring the figure much higher. These include circumstances where a company has been responsible for causing the contracting of a medical condition such as asbestosis or mesothelioma in which development can take many years to cause death. Commercially-caused deaths on the roads are estimated to reach up to 1,000 each year. Public anxiety at commercial recklessness was heightened by a number of major cases such as the Southall rail crash in which seven people were killed and 151 injured, the capsize of the Herald of Free Enterprise killing 192 and the Paddington rail crash in 1999.

4 4.1 4.2	The Current law Following a work related death, the police, with assistance from the Health and Safety Executive "HSE", investigate:- - whether the death resulted from an individual's gross negligence; and - whether that individual was sufficiently senior in the organisation that his/her guilt should equate to the company also being considered guilty of manslaughter. The majority of previous corporate manslaughter prosecutions failed due to the "identification principle" which requires that a senior level individual (in most cases a director or someone of equivalent standing who could be said to embody the company in his actions and decisions) also had to be personally guilty of manslaughter.
5 5.1 5.2 5.3 5.4 5.5 5.6	The New Act The new offence will be called corporate manslaughter and builds on key aspects of the common law offence of gross negligence manslaughter . However, rather than being contingent on the guilt of one or more individuals, liability for the new offence depends on a finding of gross negligence in the way in which the activities of the organisation are run. In summary, the offence is committed where, in particular circumstances, an organisation owes a duty to take reasonable care for a person's safety and the way in which activities of the organisation have been managed or organised amounts to a gross breach of that duty and causes the person's death. How the activities were managed or organised by senior management must be a substantial element of the gross breach. The elements of the new offence are: · The organisation must owe a "relevant duty of care" to the victim. · The organisation must be in breach of that duty of care as a result of the way in which the activities of the organisation were managed or organised. This test is not linked to a particular level of management but considers how an activity was managed within the organisation as a whole. Section 1(3) stipulates that an organisation cannot be convicted of the offence unless a substantial element of the breach lies in the way the senior management of the organisation managed or organised its activities. · The way in which the organisation's activities were managed or organised (referred to in this report as "the management failure") must have caused the victim's death. The usual principles of causation in the criminal law will apply to determine this question. This means that the management failure need not have been the sole cause of death; it need only be a cause (although intervening acts may break the chain of causation in certain circumstances). · The management failure must amount to a gross breach of the duty of care. The test asks whether the conduct that constitutes the breach falls far below what could reasonably have been expected. This reflects the threshold for the common law offence of gross negligence manslaughter. There is no question of liability where the management of an activity includes reasonable safeguards and a death nonetheless occurs. · A recent ruling by the Court of Appeal in a case of a pending prosecution of a director under section 37 of the Health and Safety at Work etc. Act 1974 relates closely to the need to monitor health and safety practices. The director concerned was responsible for an organisation where a young child was killed due to unsafe practices using forklifts. The director was also the chair of the port's Strategic Health and Safety Management Committee. The Court of Appeal overturned a previous preliminary ruling by the judge who had ruled that it was necessary to demonstrate that the individual director knew of the unsafe practices before neglect can be established. The ruling by the Court of Appeal was that it was sufficient to show that the individual either knew or ought to have known by virtue of the circumstances and had a duty to act. The term "senior management" means those persons who play a significant role in the management of the whole or a substantial part of the organisation's activities. This covers both those in the direct chain of management as well as those in, for example, strategic or regulatory compliance roles. The new offence will be triable only in the Crown Courts in England and Wales and will involve proceedings before a jury. The sanctions imposed by the court on a convicted organisation could be an unlimited fine, the imposition of a remedial order and/or a publicity order The new offence only applies in circumstances where an organisation owed a duty of care to the victim under the law of negligence. Duties of care commonly owed by corporations include · The duty owed by an employer to his employees to provide a safe system of work · The duty owed by an occupier of buildings and land to people in or on, or potentially affected by, the property. · Duties arising out of the activities that are conducted by corporations, such as the duty owed by transport companies to their passengers. The effect broadly is to include within the offence the sort of activities typically pursued by companies and other corporate bodies, whether performed by commercial organisations or by Crown or other public bodies. Many functions that are peculiarly an aspect of government are not covered by the offence because they will not fall within any of the categories of duty of care in this section. In particular, the offence will not extend to circumstances where public bodies perform activities for the benefit of the community at large but without supplying services to particular individuals. This includes wider policy-making activities on the part of central government, such as setting regulatory standards and issuing guidance to public bodies on the exercise of their functions. In many circumstances, duties of care are unlikely to be owed in respect of such activities in any event, and they will remain subject to other forms of public accountability. Sections 3 to 7 provide that the offence does not apply to the performance of specified public functions. However, whether the offence is capable of applying in any given circumstances will depend in the first place on whether a duty of care is owed to a person by an organisation, and whether the duty of care is a "relevant duty of care" .

5.7 5.7.1 5.7.2 5.7.3	Exemptions for Fire and Rescue Services Section 6 clarifies that the offence does not apply to the emergency services when responding to emergencies. This does not exclude the responsibilities these authorities owe to provide a safe system of work for their employees or to secure the safety of their premises. Emergency circumstances are defined in terms of those that are life-threatening or which are causing, or threaten to cause, serious injury or illness or serious harm to the environment or buildings or other property. However, the exemption does not extend to medical treatment itself, or to decisions about this (other than decisions that establish the priority for treating patients). Matters relating to the organisation and management of medical services will therefore be within the ambit of the offence. The exemption also does not apply to duties that do not relate to the way in which a body responds to an emergency, for example, duties to maintain vehicles in a safe condition, which will similarly be capable of engaging the offence. The effect of exemption is therefore to exclude from the offence matters such as the timeliness of a response to an emergency, the level of response and the effectiveness of the way in which the emergency is tackled. Generally, public bodies such as fire authorities do not owe duties of care in this respect and therefore would not be covered by the offence in any event. In some circumstances this may however be open to question. The new offence therefore provides a consistent approach to the application of the offence to emergency; services, covering organisations in respect of their responsibilities to provide safe working conditions for employees and in respect of their premises, but excluding wider issues about the adequacy of their response to emergencies. The exemption extends to: fire and rescue authorities in the UK; other bodies responding to emergency circumstances by arrangement with a fire and rescue authority or on a non-commercial basis (such as organisations providing fire and rescue services at an airport under the terms of their aerodrome licence).

5.8	Individual liability Secondary liability for the new offence is specifically excluded. Secondary liability is the principle under which a person may be prosecuted for an offence if they have assisted or encouraged its commission. In general, this means that a person can be convicted for an offence if they have aided, abetted, counselled or procured it. Section 18 specifically excludes an individual being liable for the new offence on this basis. This does not though affect an individual's direct liability for offences such as gross negligence manslaughter, culpable homicide or health and safety offences, where the relevant elements of those offences are made out.

5.9	Penalties
5.9.1 5.9.2 5.9.3	An organisation that is guilty of corporate manslaughter or corporate homicide is liable on conviction on indictment to a fine. Courts will be able to impose unlimited fines on organisations and the generally held view is that they will look to reflect the gravity of the new offence by imposing substantially larger fines than those presently awarded under the Health and Safety at Work Act. Consultation on the level of fines is ongoing with fines representing 5-10% of turnover being proposed. The consultation is also considering whether a fine imposed upon a public body such as a fire and rescue service would in fact be an appropriate sanction given that ultimately the cost would be borne by the taxpayer. The Courts will also be able to impose "remedial orders" requiring the organisation to put right any relevant deficiencies in their systems and procedures, within a specified period of time. Very importantly, courts will also have the power to "name and shame" by requiring organisations to publicise particulars of their offence, the conviction and the penalties imposed within a specified period by the imposition of a "publicity order." The public stigma and damage to reputation attached to the offence should be of particular concern to Fire and Rescue Authorities.

6 6.1 6.2 6.3 6.4 6.5 6.6	Actions The Authority has a duty to ensure that robust health and safety policies and procedures are in place in the Service and that these are underpinned by a supportive culture throughout the whole organisation. It is also important that both the Service and the Authority are confident that existing health and safety arrangements in the Service are sufficiently comprehensive and robust so as to be able to undergo any scrutiny or challenge. In the light of the new risk to the Authority it is recommended that this Committee asks the Chief Officer to produce a report for the Committee containing a thorough review of the Service's existing health and safety arrangements and proposals for future method of reporting on the management of health and safety within the Service. The Chief Officer's report should also highlight: · notable practice · planned improvements · feedback from external audits, and · recommendations for the future monitoring of health and safety. Given that responsibility for effective health and safety falls both to the Authority and the Service it would appear appropriate for the initial report and proposals for future annual reports to be jointly agreed by both the Clerk and the Chief Officer. It is likely that the most effective format for the annual report would be to follow the Health and Safety Guidance and be structured so as to report upon: · Policy · Organisation · Planning · Measurement · Audit · Review However other relevant guidance and legislation and guidance including The Management of Health and Safety at Work Regulations 1999, and the Institute of Directors and Health and Safety Commission joint publication `Leading Health and Safety at Work' should also be taken into account.

7	Risk Analysis
7.1 7.2	The Act will inevitably lead to an increased likelihood of prosecution for corporate manslaughter in the event of fatal accidents. Given the enormous risk to the reputation of fire and rescue authorities inherent in any such prosecution an even greater emphasis should be placed on health and safety in the Service. The Committee should always bear in mind that while it is the health and safety practices of the Service that will be scrutinised in the event of a fatality it would ultimately be the Authority that would be liable for prosecution under the Act if there was a relevant breach of the duty of care


Background Information

The following documents disclose the facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of the report: · Corporate Manslaughter and Corporate Homicide Act 2007 · Corporate Manslaughter and Corporate Homicide Act 2007-Guidance Note

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