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CENTRE FOR CORPORATE ACCOUNTABILITY

GUIDANCE ON THE
CORPORATE MANSLAUGHTER
AND CORPORATE HOMICIDE ACT 2007

A COMPREHENSIVE BRIEFING FOR THE LAYPERSON


AND THE EXPERT

April 2008
1

The Centre for Corporate Accountability


The CCA is a charity concerned with worker and public
safety with a particular focus on the role of state
bodies in the enforcement of health and safety law,
investigation of work related death and injury, and the
prosecution of those responsible. It runs Britains only
national advice service for families bereaved from workrelated deaths on investigation and prosecution issues
arising from the deaths (which is independent, free and
confidential). It has a Legal Services Commission
Quality Advice Mark. The CCA has been involved in the
debates around reform of corporate manslaughter since
the late 1990s.
-------------------------------------------------------------------------th

CCA, 4 Floor, 197/199 City Road, London EC1V 1JN


Tel.: 0207 490 4494

Bereaved Families - Contact the CCA


The CCA has been providing advice and assistance to
families bereaved from work-related deaths since 2000.
We are the only national organisation providing this
assistance which is free, confidential and
independent. If you are a bereaved family member and
would like advice on any issues relevant to the
investigation and prosecution of work-related deaths,
call the CCA on 0207 490 4494 and ask to speak to a
caseworker or e-mail:
advice@corporateaccountability.org
Also see:
www.corporateaccountability.org/advice/main.htm

TRAINING AND INFORMATION


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E-mail the CCA: info@coporateaccountability.org

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SUMMARY CONTENTS PAGE


PART ONE: EMERGENCE OF THE NEW LAW
Chapter 1:
Chapter 2:
Chapter 3

Background
Summary of the Act: Conditions for a prosecution
Assessment of the Act

7
8
14
17

PART TWO: ELEMENTS OF THE OFFENCE

20

Chapter 4:

22

Chapter 5:
Chapter 6:
Chapter 7:
Chapter 8:
Chapter 9:
Chapter 10:
Chapter 11:
Chapter 12:
Chapter 13:
Chapter 14:

Has the harm, resulting in the death, taken


place in the UK?
Does the evidence relate to events on or after
6 April 2008?
What types of organisations can commit the offence?
Duty of Care within the Act
Is there a duty of care between the organisation and the deceased?
Does the duty of care fit within one of the categories
set out in section 2 of the Act?
Exemptions to these categories of relevant
duty of care
Was there a failure in the way in which the
organisation was managed or organised?
Was a substantial element of the failure at
senior management level?
Was there a gross breach?
Was the failure a cause of the death?

25
27
33
34
38
42
56
57
61
63

PART THREE: INVESTIGATION, PROSECUTION AND SENTENCING

64

Chapter 15:
Chapter 16:
Chapter 17:

65
68
70

Investigation
Prosecution
Sentencing

Annexes

76

1. Schedule 1 to the Act: List of Government departments etc.


2. Special provisions allowing for the prosecution of unincorporated defendants
3. Companies convicted of Manslaughter (as of 6 April 2008)
4. CCAs Response to the Sentencing Advisory Panel
An archive of all key documents relating to the reform process from the 1996 Law
Commission proposals to the House of Lords debates in 2007, can be accessed
here: http://www.corporateaccountability.org/manslaughter/reformprops/archive.htm

DETAILED CONTENTS PAGE


PART ONE: EMERGENCE OF THE NEW LAW

Chapter 1:

Background

Boxes:
- Common law and statutory offences
- The Identification doctrine
- Law Commissions Corporate Killing offence
- Scotland and the reform process
- Key differences between the new and old offences

8
9
10
12
13

Chapter 2:

Summary of the Act: Conditions for a prosecution

14

Chapter 3:

Assessment of the Act

17

PART TWO: ELEMENTS OF THE OFFENCE


Boxes:
- Key clauses of the offence
Chapter 4:

21

Has the harm, resulting in the death, taken


place in the UK?
Boxes:
- What kind of harm must take place
- Background to the issue of jurisdiction
- Jurisdiction: reform history

Chapter 5:

Chapter 6:

Chapter 7:

20

Does the evidence relate to events on or after


6 April 2008?

22

22
23
24
25

Boxes:
- Commencement of Act: relevant sections

25

What types of organisations can commit the offence?

27

Boxes:
- Individual culpability?
- What is a Crown body?
- Organisations: How this differs from the past
- Public bodies within public bodies!
- Organisations: reform history
- Individuals: reform history
- Parent companies: reform history

27
28
29
29
30
31
32

Duty of Care within the Act

33

Chapter 8:

Is there a duty of care between the organization


and the deceased?
Boxes:
- Parent companies and duty of care
- Duty of care: reform history
- Governments arguments in favour of duty of care

Chapter 9:

Does the duty of care fit within one of the categories


set out in section 2 of the Act?
Boxes:
- Meaning of construction or maintenance operation

Chapter 10: Exemptions to these categories of relevant


duty of care

34

34
36
37
38

40
42

- Deaths resulting from public policy decision-making


by a public authority
- Deaths resulting from an activity considered to be an
exclusively public function
- Deaths arising from Ministry of Defense activities
- Deaths resulting from policing and law enforcement activities
- Deaths resulting from organisations carrying out emergency
services
- Deaths resulting from child protection and probationary duties
- Deaths from statutory inspections
Boxes:
- What constitutes a public authority
- How wide is police immunity?
- Organisations exempted in relation to providing emergency response
- When will the child protection exemption apply?
- What is the reason for the exemption relating to probation?
- Exemptions: reform history
- Relevant duty of care: rule of thumb
- Governments arguments in favour of wide exemptions
- Does the offence comply with human rights law?
Chapter 11: Was there a failure in the way in which the
organisation was managed or organised?
Boxes:
- The way the organisation is managed or organised

42
46
48
49
50
52
53
54
55
56

56

Chapter 12: Was a substantial element of the failure at


senior management level?
Boxes
- What is senior management?
- How does the new test differ from the identification doctrine?
Chapter 13: Was there a gross breach?

57

57
58
61

Boxes
- Health and safety guidance
- Gross breach: reform history
Chapter 14: Was the failure a cause of the death?
Boxes
- Causation: reform History

61
62
63
63

PART THREE: INVESTIGATION, PROSECUTION AND SENTENCING

64

Chapter 15: Investigation

65

Boxes:
- Investigation: reform history

67

Chapter 16: Prosecution

68

Boxes:
- Private prosecution: reform history
Chapter 17: Sentencing
- Fines
- Publicity orders
- Remedial orders

69
70

Boxes:
- Application date of publicity orders
- Which enforcement agency?
- Why publicity orders?
- Comparisons with similar court powers
- The purpose and extent of remedial orders
- Compensation orders
- Sentencing: reform history
Annexes
1. Schedule 1 to the Act: List of Government departments etc.
2. Special provisions allowing for the prosecution of unincorporated defendants
3. Companies convicted of Manslaughter (as of 6 April 2008)
4. CCAs Response to the Sentencing Advisory Panel

71
71
72
72
73
74
75
76
76
78
80
81

PART ONE
EMERGENCE OF THE NEW LAW

In this part, we introduce the purpose of this guidance, discuss the origins of the
new Corporate Manslaughter and Corporate Homicide Act 2007, explain the
failings of the old law, the negotiated history of the proposals to replace it,
summarise the key provisions, and provide an overall assessment.
Chapter 1: Background
Chapter 2: Summary of the Act
Chapter 3: Assessment of the Act

CHAPTER 1
BACKGROUND
Purpose of the Guidance

The new statutory offences of Corporate Manslaughter (in England, Wales and Northern Ireland)
and Corporate Homicide (in Scotland) started to apply on 6 April 2008.1
This guidance produced by the Centre for Corporate All references in this guidance to the
Accountability is intended to help a range of offence of corporate manslaughter refer
interested groups and individuals whether they be equally to the offence of corporate
personal injury lawyers, other advisors, trade unions homicide the name of the same offence
and their safety reps, bereaved families, managers, in Scotland - unless it is clear from the
directors or others to understand the nature of the context that this is not the case.
new offence, in what circumstances organisations
will be prosecuted, areas in which it remains open to legal interpretation, and so on.
Specifically, this guidance addresses the following questions:
- what kinds of organisations can commit this offence?
- will the offence apply to non-UK organisations?
- will the offence apply to deaths outside the UK?
- when is there a relevant duty of care?
- what kinds of management failure can be subject to prosecution?
- what kind of senior manager conduct will result in a prosecution?
- how will a jury decide whether the failure of the organisation is gross
- how do you know whether a failure has caused the death?
- what will happen to convicted organisations?
Whilst comprehensive, the guidance tries to explain the new law in as accessible a manner as
possible. Some elements of the offence are not clear and can be interpreted in different ways.
Where this is the case, we analyse what the government intended to mean through considering
what it said in Parliament during the course of house of commons and house of lords debates, the
Explanatory Memorandum which was published alongside the Act, and the more recent Home
Office guidance. In time, as these matters come up before the courts, the meaning of particular
phrases in the Act will become more
certain.
Common law and Statutory offences
Apart from explaining the current law,
this guidance also helps explain how
this new statutory offence differs from
the old common law offence (see
Box, Common law and Statutory
offences), and what were the key
arguments during the process of reform

The old manslaughter offence is commonly described


as a common law offence. This means that the
offence is not set out in legislation that has been passed
in Parliament, but is set out solely in case law - that
is, in rulings made by judges over the years. The new
offence is described as a statutory offence because it
is set out in a law (also known as a statute or Act)
that has been passed in Parliament.

To see commencement order: http://www.opsi.gov.uk/si/si2008/uksi_20080401_en_1. This excludes the provisions that allow
the offence to apply to deaths in custody, and to the use of publicity orders (see page 25)

in the 12 years since the Law Commission in England and Wales2 published its proposals for
reform in 1996.
Why was reform considered necessary?

The need for reform was recognised as long ago as 1990 due to the collapse of the trial against
P&O European Ferries for the manslaughter of those who died when the Herald of Free
Enterprise capsized off the coast of Zeebrugge. People were shocked that the company was able
to escape conviction simply because the individual directors and senior managers were
acquitted. This was possible because the law only allowed companies to be convicted of
manslaughter if a senior manager or director of the company was convicted as an individual for
manslaughter. (This test was known as the identification doctrine - see Box The identification
doctrine). It was recognised then, that there was a need for a new offence that would allow the
company to be convicted on the basis of its own management failures, rather than on the basis of
proving an offence against one or more specific individuals.
It also came to be understood that the
legal test under the existing offence
seriously discriminated against small
companies, whilst giving immunity to
large ones. This was because with
small companies, it could be more
easily shown that the directors and
senior managers of the company were
well aware of the failures on the shop
floor that resulted in the death, often
giving direct instructions themselves
that resulted in the death. In small
companies, any workers death from
serious management failings could be
more easily be traced back to an
individual director or senior manager
of a small company allowing the
company to be prosecuted.

The identification doctrine

This is the name given to the test which is also


sometimes known as the controlling mind doctrine that underlay the old common law offence of corporate
manslaughter in England and Wales. It meant that a
companys guilt for a criminal offence was entirely
dependent on the guilt of an individual senior enough
within the company to be one of its controlling minds.
Company directors were always considered to be
controlling minds but so were senior managers,
depending upon their level of control. The identification
doctrine meant that if there was evidence to prosecute
such an individual for manslaughter, the company could
also be separately charged with the offence; and the
guilt/innocence of the company was then entirely
dependent on whether the individual was convicted or
acquitted. In Scotland, the company could, in addition, be
convicted of corporate homicide on the basis of a
decision by a group of persons, such as a committee of
directors.

Large companies are different. They are often complexly organised, with most day to day
decisions widely distributed and delegated. Any failures are often the results of many individuals
working at different management levels within the organisation. As the Government said when
introducing this legislation in Parliament The driving force behind the Bill is that fact that the
current law of corporate manslaughter is based on too narrow a definition of corporate liability.
The law works reasonably well for small organisations, but it does not reflect the reality of
decision making in large or complex ones where failures in the management chain can rarely be
laid at the door or a senior individual manager.3 For this reason, it has been extremely difficult
to get enough evidence to prosecute a single director or senior manager for the offence of
2

The Law commission is an independent body set up by Parliament to review and recommend reform of the law in England and
Wales. http://www.lawcom.gov.uk/
3
Report Stage, House of Commons, 4 Dec 06, col 67.

manslaughter
in
large
companies. As a result, large
companies usually avoided
prosecution and always escaped
conviction (see annex 3).
History of Reform

Law Commissions Corporate Killing offence

(1) A corporation is guilty of corporate killing if:


(a) a management failure by the corporation is the cause or
one of the causes of a person's death; and
(b) that failure constitutes conduct falling far below what can
reasonably be expected of the corporation in the
circumstances.
(2) For the purposes of sub-section (1) above:
(a) there is a management failure by a corporation if the way
in which its activities are managed or organised fails to
ensure the health and safety of persons employed in or
affected by those activities.

The reform process started in


1996 with the publication by the
Law Commission for England
and Wales of a report
recommending reform of the law
of manslaughter for both
individuals and organisations. In relation to organisations, it proposed the creation of a new
statutory offence of corporate killing in which companies could be convicted following
evidence that the death was the result of a serious management failure (see Box: Law
4
Commissions Corporate Killing offence).
In 2000, following the election three years earlier of a Labour government, the Home Office
published a consultation document on reform to the law of manslaughter.5 In relation to the
corporate offence, this report supported the proposed Law Commission offence of Corporate
Killing but suggested that: the new offence should apply not just to companies but to all
undertakings (other than crown bodies);6 it may be appropriate for there to be a secondary
offence so that directors and managers could be prosecuted for contributing to the offence by the
organisation; and the offence should be investigated by the Health and Safety Executive and
other similar regulatory bodies.7 In addition it proposed the offence should allow parent
companies to be prosecuted for deaths when their conduct was responsible for deaths within their
subsidiary companies. The Government did not publish a formal response to this consultation
process, but five years later published a summary of submissions made by the public.8
In March 2005, after a delay of five years, the Home Office published a new consultation
document with a new draft Bill this time concerned solely with the creation of a new offence of
corporate manslaughter for England and Wales.9 Although the proposed offence was based
around the idea of the need to prove the existence of a serious management failure, it differed
quite significantly from both the Law Commission and Home Offices previous proposals. It
proposed: that the offence should, with significant exemptions, apply to crown bodies (though
not to any other kinds of unincorporated bodies); that the offence should require the organisation
to have had a civil law duty of care towards the deceased; and that the management failure be at
a senior management level. In addition, the new Bill did not contain any new offences allowing
for the prosecution of individuals, explicitly precluded the possibility of individuals being
4

:http://www.lawcom.gov.uk/docs/lc237.pdf
http://www.homeoffice.gov.uk/documents/cons-2005-corporate-manslaughter/2000-cons-invol-manslaughter.pdf?view=Binary
6
To understand what a crown body is, see Box: What is a Crown Body, on p.28.
7
To read more about the 2000 consultation: www.corporateaccountability.org/manslaughter/reformprops/2000/main.htm
8
http://www.homeoffice.gov.uk/documents/cons-2005-corporate-manslaughter/2000-cons-summary-responses.pdf?view=Binary
9
It did not concern itself with the individual offences of killing by gross carelessness or reckless killing which has been proposed
earlier by the Law Commission in 1996 and the Government in 2000..
5

10

prosecuted for aiding and abetting, and rejected the idea of taking investigation responsibilities
away from the police.
Following the consultation process, the Bill was scrutinised by a joint committee of the Home
Affairs and Work and Pensions Select committees (referred to in this report as the parliamentary
scrutiny committee). In its report, published in December 2005, the scrutiny committee set out a
number of concerns relating to the Bill. The main concerns were that:
- the offence should apply to large unincorporated organisations and police forces;
- it should be possible to prosecute parent companies in relation to deaths in their subsidiaries;
- exemptions to crown body immunity should be more limited, and in particular the offence
should apply to deaths in custody;
- only high levels of public policy decision making should apply;
- the offence should not require a civil law duty of care relationship;
- the management failure should not be restricted to a senior level within the organisation;
- the jury should not need to consider whether senior managers sought to cause the organisation
to profit or benefit from the failure in determining whether there has been a gross breach;
- consideration should be given to whether fines should be related to an organisations turnover,
and there should be additional sentences available to the court;
- there should be an additional offence allowing the prosecution of individuals who are a party
to the offence; and
- private prosecutions should be possible without the consent of the Director of Public
Prosecutions.10
In its response to the Committee, the Government accepted only a few recommendations. These
were that: public policy exemptions should apply at only a high level of decision making; the
senior management test would be reviewed; the factors for the jury to consider should be
changed; public body exemptions should be clarified; and the sentencing guidelines committee
should draft guidance on sentencing.11
In July 2006 the government published a revised Bill which was introduced into Parliament. This
Bill not only applied to England and Wales, but also to Scotland and Northern Ireland (see Box:
Scotland and the reform process, p. 12). Other than this, the key changes related to; detailing what
public bodies and what activities would be exempted; a revised set of factors for the jury to
consider in determining whether a senior management failure was gross; and applying the Bill to
police forces (and not just police authorities). During the course of debate in the Commons and
the Lords, the Government brought forward a number of amendments, the most important being
the following:
- the senior manager test was changed so that only a substantial element of the management
failure must be at a senior manager level;
- the offence would also apply to partnerships, trade unions and employer organisations as
long as they were employers;
- the court would have powers to impose a publicity order upon a convicted organisation;
- the offence would, within a 3 to 5 year time period, apply to deaths in custody.
10

http://www.publications.parliament.uk/pa/cm200506/cmselect/cmhaff/540/54002.htm
To read CCAs evidence to this: http://www.corporateaccountability.org/manslaughter/reformprops/2005/main.htm
11
http://www.official-documents.gov.uk/document/cm67/6755/6755.pdf

11

Scotland and the Reform Process


Until the Westminster government introduced its final Bill into Parliament in 2006, the reform
process around the law of corporate manslaughter in England and Wales on the one hand and of
corporate homicide in Scotland on the other, were on separate tracks. The Law Commissions
1996 proposals, and the two Home Office consultations of 2000 and 2005, only related to
England and Wales and it had always been assumed that the Scottish Executive (established in
1999) would enact its own legislation applying to Scotland. Indeed, in April 2005, soon after the
publication of the Home Office draft bill, the Executive set up an expert committee to advise it
on what legal reforms should be made in Scotland.
The Expert committee report made the following recommendations:
- While there would be advantages in a uniform approach across the UK, this was not an
overriding factor. What was more important was to get the law right for Scotland.
- There should be an offence which makes organisations responsible for actions or omissions by
their agents which result in death. An organisation should be liable where it fails to put
policies, practices and systems in place to ensure the health and safety of its employees and
those affected by its activities. This may include allowing, or failing to take all reasonable
steps to prevent, a corporate culture to exist which encourages, tolerates or leads to an offence
taking place.
- Organisations would have a due diligence defence if they could show that they had policies
and procedures in place which should have prevented such an incident taking place, and that
they ensured a corporate culture which reinforced these policies and procedures.
- The offence should cover unincorporated bodies and should extend - as far as practicably
possible - to all Crown bodies.
- The majority of the committee considered that: (a) the legislation should apply equally to
deaths in Scotland caused by organisations based outside Scotland, and to deaths caused
outside Scotland by organisations based within Scotland, and (b) there should be a secondary
offence for individual directors/senior managers whose actions/omissions significantly
contributed to death(s).
- There should be a wide range of penalties available to the Court to enable sentences for
organisations to reflect appropriately the specific circumstances of each case, including
corporate probation, equity fines and community orders
(To read the full report: www.scotland.gov.uk/Topics/Justice/criminal/Corporate/finalreport)
It was with great surprise, therefore, that final bill introduced at Westminster in 2006, applied
not only to England and Wales, but also to Scotland. The Governments explanation was that
both the Scottish Executive and the Westminster Governments recognised that reform in this
area was closely aligned to health and safety issues, which constitute a matter reserved for the
Westminster Parliament to legislate. The Government also argued that it did not want a situation
where companies would be operating under different regimes north and south of the border
(19 Oct 2006, Commons Standing Committee, column 32)

12

Key differences between the new statutory and the old common law offence
under the old common law offence, only companies could be prosecuted; the new statutory
offence also applies to crown bodies, partnerships and some other unincorporated organisations
(as long as they employ staff);
there will now be one single offence for England, Wales, Scotland and Northern Ireland. Before,
there were three separate common law offences: one for England and Wales, another for
Scotland, and another one for Northern Ireland (although there were significant similarities
between the three of them);
under the old common law offence it was necessary to prosecute a director or senior manager (a
controlling officer) of the company for manslaughter, in order to be able to prosecute the
company for manslaughter. The prosecution against the company was entirely dependent on the
evidence against the senior manager. Under the new statutory offence, the prosecution of a
director or senior manager is no longer necessary. Instead, there is now an entirely new test to
assess the guilt of the company that rests upon whether there has been a serious management
failure within the organisation;
there is a clearer test for assessing whether or not there has been gross negligence. The jury
must consider that the organisations failure fell far below what can reasonably be expected
and there are factors set out that the jury need to take into account.
under the old common law the offence, the only penalty was a fine. Under the new statutory
offence, in addition to fines, the court has the power to make a remedial order that requires the
company to remedy the breach of the Act. This is a similar power to the one that the courts have
following convictions for health and safety offences. The court also has the power to make a
publicity order that requires the organisation to publicise any conviction.
Key Similarities
the offences are both based around there being a gross breach of a duty of care
it is investigated by the police and prosecuted by the Crown Prosecution Service (in England and
Wales) and Procurator Fiscal Service (in Scotland)
the main sentence is an unlimited fine

13

CHAPTER 2
SUMMARY OF THE ACT
Conditions for a prosecution

1.

The harm resulting in the death must have taken place in the UK (or in its territorial waters,
or on a British ship, aircraft or hovercraft). The harm (that results in death) need not be a
physical injury, it can also be a health impact, from a chemical or germ exposure (see
Chapter 4).

2.

The harm that results in the death must have taken place on or after 6 April 2008 (see
Chapter 5).

3.

The evidence to substantiate any of the management failures must have taken place on or
after 6 April 2008 (see Chapter 5).

4.

The organisation at fault must be either:


(a) Corporate bodies - including all private companies, companies incorporated by statute
including crown bodies, companies incorporated at common law or Royal charter or
companies incorporated outside the UK. This includes local authorities, hospital trusts
and other government bodies that are incorporated. Parent companies can be prosecuted
but not for deaths resulting from the activities of their subsidiary companies
(b) Crown bodies that are mentioned in a schedule to the Act this includes all government
departments and some executive bodies
(c) Police forces
(d) Partnerships, employer bodies and trade unions (that employ staff) can also be
prosecuted.
(Hospitals and schools cannot be prosecuted but hospital trusts and local education
authorities can be.) (see Chapter 6).

5.

The responsible organisation must have owed a duty of care towards the person who died
(see Chapter 8).

6.

This duty of care must have be been of a particular kind falling into the categories set out
in section 2 of the Act (see Chapter 9). In summary these must relate to the responsibilities of
- organisations as employers and occupiers towards their staff and those who enter their
land, premises etc;
- organisations as manufacturers towards those who buy their products;
- transport operators towards their passengers;
- hospitals towards their patients;
- local councils in the provision of particular services towards those receiving the
services;
- other organisations involved in the supply of goods or services towards those receiving
them;
- organisations involved in construction or maintenance operations towards those affected
by their activities;

14

- organisations involved in the keeping of any plant, vehicle or other thing towards those
affected by this;
- commercial organisation to others affected by their activities.
There is another category of duty of care concerning bodies responsible for those in state
custody but this will only apply in three to five years time, 2011 to 2013.
7.

The duty of care must not have fallen into one of the exemptions contained in the Act. In
summary these are:
- where the death is a result of high level policy decision involving the allocation of
resources made by a public authority;
- a death which is the result of activities that only the state can uniquely perform (i.e
granting of certain licenses, diplomacy etc.). This exemption does not include a death of a
member of staff or involves the organisations responsibilities as an occupier;
- ambulance or fire or rescue services, where the death is of a member of the public due to
how an emergency response was carried out (other than in the nature of medical care
provided) ;
- where the death is the result of the MOD undertaking any military operations (or
preparatory activities or hazardous training activities in relation to them), even if the death
involves a soldier;
- where the death is the result of a public authority undertaking statutory inspections, a
local authority undertaking its child protection responsibilities or a probation board
undertaking its supervisory responsibilities - and the death is not that of a member of staff
or does not relate to occupier responsibilities;
- where the death is the result of the police force (or other public authority undertaking
these functions) involving any policing or law enforcement activity and the death is not
that of a member of staff or relates to occupier responsibilities .
See Box: Relevant duty of care: Rule of Thumb, p 53 for a more detailed summary, and
Chapter 10 for details.
There are few exemptions for commercial organisations unless the death is the result of it
carrying out activities whilst functioning as a public authority (in which case it has the same
exemptions as public authorities have above), or if the commercial organisation is carrying
out ambulance services on behalf of an NHS Trust etc, and a death takes place in the course
of responding to an emergency. Private security firms do not have the same exemptions as
police forces. (see Box: What constitutes a public authority, p. 42).

8.

There must be a failure in the way in which the organisation was managed or organised
which amounted to a gross breach of the duty of care. This requires evidence that the failure
fell far below what can reasonably be expected. In assessing this, the jury must consider
the seriousness of the breach of health and safety law and the extent to which it posed a risk
of death. The Jury can also consider the extent to which the attitudes, policies, systems of
accepted practices encouraged the failure, and whether there was any breach of health and
safety guidance (see chapter 11 and 12).

15

9.

A substantial element of the management failure must be at a senior management level. This
is defined as the persons who play significant roles in
(i) the making of decision about how the whole or a substantial part of its activities are to
be managed or organised, or
(ii) the actual managing or organising of the whole or a substantial part of those activities.
(see chapter 13).

10. The failure must have caused the death. This need not be the only cause of death. One should
be able to say that but for the failure in question, the death would not have taken place (see
chapter 14).
Investigation, Prosecution, sentencing
11. The police will be the main investigators of the offence but will, as now, be supported by
health and safety regulators like the Health and Safety Executive. It will be prosecuted by the
Crown Prosecution Service in England and Wales, and the Procurator Fiscal Service in
Scotland (see chapters 15 and 16)
12. Private prosecutions can only take place after the DPP has given his or her consent (see
chapter 16).
13. Convicted organisations can receive an unlimited fine. The Sentencing Guidance Council
will publish towards the end of 2008 guidance to the courts in relation to the level of fines
they can impose. The Panel, that advises the Council, has proposed fines of between 2.5%
and 10% of an organisations turnover (see chapter 17).

16

CHAPTER 3
ASSESSMENT OF THE ACT
Holding large and medium sized organisations to account

The new Act with its creation of a new test of organisational liability should make it easier to
prosecute large and medium sized organisations. The particular positive elements of the new test
are:
- it is based around evidence of a serious management failure, not on serious individual failures;
- there is a clearer test of whether or not the failure is gross namely, falling far below what
can reasonably be expected in the circumstances;
- there are clear factors that the jury must take into account seriousness of the breach of health
and safety law which will make it more straightforward for a jury in its consideration of the
organisations guilt;
- there are additional factors that the jury can take into account including whether the
organisation has breached any health and safety guidance, the organisationss attitudes,
policies, systems or accepted practices.
However, there is no certainty that it will make it easier to prosecute large and medium sized
organisations, as there remains some doubt about how the Crown Prosecution Service (in
deciding whether or not to prosecute) and the courts will interpret the requirement that a
substantial element of the management failure must be at a senior management level. Assuming
that this test works in the way that the CCA thinks and hopes it will (see Box: How does the new
test differs from the identification doctrine?, p. 58), the new test should be an important advance in
increasing corporate accountability following deaths.
The issue of sentencing

Making it easier to prosecute is one thing. Making convictions have real impact is quite another.
At the end of the day, the success of the Act will depend on the size of the fines that the courts
will impose on convicted organisations. The Sentencing Guidelines Council is now drafting
guidance on this. A consultation document produced by the Sentencing Advisory Panel (SAP)
which advises the Council - however proposed fines of between 2.5% and 10% of an
organisations turnover - a level of fine which, many would argue, fails to reflect the seriousness
of the sentence that would be imposed upon an individual convicted of manslaughter. (See Annex
3: CCAs response to SAP). This is therefore troubling. Whilst conviction should not result in
large or medium sized companies being forced to shut down (except in the most extreme of
cases), the penalty imposed must be very significant indeed in its punitive and deterrent impact..
The final guidelines on this will not be produced until the end of 2008.
Other positives but

One should note that there are also clear benefits with the offence opening up to partnerships,
police forces and crown bodies. Indeed, this is the first criminal offence to apply to crown bodies
and to police forces! However, in relation to many activities of these public bodies law
enforcement, emergency services, military operations, child protection issues, probation and
statutory inspections gross failures will only be able to result in prosecution of the public body
where the death was a gross failure in its responsibilities as an employer and occupier, not in

17

relation to its responsibilities as a provider of services and how this impacts on members of the
public. That is to say, if an employee dies, prosecution can take place; if a member of the public
dies as a result of provision of services, the public body cannot be prosecuted. Furthermore:
- in relation to certain policing and military activities, there is total exemption;
- if any death results from high level policy decision making relating to the allocation of
resources, the public body has immunity; and
- many public bodies will escape prosecution simply because they do not owe a civil law duty
of care.
These exemptions are clearly very disappointing and will result in inappropriate anomalies. In
another Hillsborough disaster the police force could be prosecuted if it resulted in the death of
a police officer, but not if it resulted in the death of a member of the public. In addition, it also
means that in a situation where the public body can not be prosecuted although there were clear
failures on its part the blame will fall solely on individuals.
In addition, crown bodies (that are not separately incorporated by statute) can only be prosecuted
if their names are mentioned in the schedule. Whilst all government departments are mentioned,
there are many bodies which are part of government departments that are not. So whilst the Home
Office is mentioned, the prison service is not, and nor are individual prisons. This means that
only the government department and not the organisation itself can be prosecuted. This will make
prosecutions involving these kinds of deaths very difficult indeed as the senior manager failure
will have to be at the government departmental level (i.e. Home Office), not at the level of the
sub-organisation (i.e. the prison) within the department. Deaths resulting from very serious
failure (including at a senior manager level) at the level of the prison, will only be able to result
in a prosecution if a substantial element of that failure was at a senior management level of the
Home Office.
Parent company immunity

One impact of the offence being based around the need for a civil law duty of care is that it
means that parent companies cannot be prosecuted for deaths resulting from the activities of its
subsidiary bodies however serious the failure of the parent company. This is despite the
Government in 2000 making it very clear that this was necessary (see Box: Parent Companies:
Reform History, p. 32).
Further delay before application

One significant concern we have about the Act is that it will not apply to any death even if it
took place after 6 April 2008 - unless all the failures necessary to prove the offence also took
place after that date. This will mean that prosecutions for this offence will not start for a very
long time indeed particularly for large organisations. Whilst the Act should only apply to deaths
after 6 April, it should apply if the management failures took place before then. The provisions
that allowed this to happen were not raised by any member of Parliament or member of the
Lords.
Other smaller concerns
There are some other disappointments: First, the fact that the offence does not apply in relation to
any harm (resulting in a death) that takes place outside the UK even if the management failure
took place in the UK. This creates a difference in treatment between organisations and
18

individuals (who can be prosecuted for manslaughter that they commit abroad). However, in the
Lords the Government spokesperson did say, that there may well be a case for looking at
jurisdiction further down the line. Second, the requirement for private prosecutions to have the
consent of the DPP in order for them to proceed even though the Law Commission and the
Home Offices first consultation document considered the requirement for consent unnecessary.
The question of individual culpability

Many have criticised the new Act in failing to deal with individual accountability in particular
in relation to the conduct of directors and managers. The Act only allows for the prosecution of
organisations - and individuals cannot be prosecuted for even contributing to this offence
(although the ordinary law of manslaughter will apply to them). For those who think that
prosecuting organisations is pretty worthless and that the only thing that will ensure proper
accountability and deterrence is the prosecution of directors and managers followed on
conviction by their jail sentence this new Act is "the dampest of damp squibs."12
It is absolutely the case that the lack of individual accountability for directors and senior
managers is a real problem. No director or senior manager of a large or medium sized company
has ever been convicted for either a manslaughter or a health and safety offence. The government
must respond to this particularly in relation to imposing duties on directors. And during the
course of debate the Government appeared to commit themselves to serious consideration of
reform.
However, the failure to create an individual offence in this Act is not decisive (for us) in our
assessment of it. It is important to be able to hold organisations, as well as individuals
accountable under the criminal law, particularly in situations where management responsibility is
diffuse and no individuals can be shown to have individually failed in a significant way. There is
however a caveat to this. It depends on the court imposing, on conviction, very significant fines.
Unless this happens, the Act will certainly be a damp squid.

12

Response of the trade union UCATT http://news.bbc.co.uk/1/hi/uk/7332900.stm

19

PART 2
ELEMENTS OF THE OFFENCE
This part of the guidance chapters 4 to 14 - looks at ten conditions that need to be
proven in order for an organisation to be prosecuted for this offence.
Chapter 4:

The harm, that resulted in the death, took place in the UK.

Chapter 5:

Both the harm (that resulted in the death) and the evidence
supporting the prosecution took place on or after 6 April 2008.

Chapter 6:

The organisation considered responsible for the death is of the type


that can be prosecuted for this offence.

Chapter 7 and 8:

The organisation owed a duty of care to the deceased.

Chapter 9:

The duty of care fits within one of the categories of duties of care
set out in section 2.

Chapter 10:

The duty of care does not come within one of the exemptions.

Chapter 11:

There was a failure in the way in which the organisation was


managed or organised (in relation to the circumstances that
resulted in the death).

Chapter 12:

This management/organisation failure amounted to a gross breach


of the duty of care.

Chapter 13:

A substantial element of the failure was at a senior management


level.

Chapter 14:

The failure was a cause of the death.

20

KEY CLAUSES OF THE OFFENCE


1 (1) An organisation to which this section applies is guilty of an offence if the way in
which its activities are managed or organised:
(a) causes a persons death, and
(b) amounts to a gross breach of a relevant duty of care owed by the
organisation to the deceased.
(3) An organisation is guilty of an offence under this section only if the way in
which its activities are managed or organised by its senior management is a
substantial element in the breach referred to in subsection (1).
(4) (b) A breach of a duty of care by an organisation is a gross breach if the
conduct alleged to amount to a breach of that duty falls far below what can
reasonably be expected of the organisation in the circumstances.
(c) Senior Management in relation to an organisation means the persons who
play significant roles in(i) the making of decisions about how the whole or a substantial part of its
activities are to be managed or organised, or
(ii) the actual managing or organising of the whole or a substantial part of
those activities.
8 (2) The Jury must consider whether the evidence shows that the organisation
failed to comply with any health and safety legislation that relates to the
alleged breach, and if so
(a) how serious that failure was;
(b) how much of a risk of death it posed.
(3) The jury may also
(a) consider the extent to which the evidence shows that there were attitudes,
policies, systems or accepted practices within the organisation that were
likely to have encouraged any such failure as is mentioned in sub-section
2 or to have produced tolerance of it
(b) have regard to any health and safety guidance that relates to the alleged
breach.

21

CHAPTER 4
HAS THE HARM, RESULTING IN THE DEATH,
TAKEN PLACE IN THE UK?
The offence will only apply if the harm that resulted in the death took place within the UK England, Wales, Scotland and Northern Ireland.
It is important to note that it is where the harm not the death - occurs that determines whether
the offence applies.
Usually, the death will occur at the same time or very
soon after the injury, so both the injury and the death
will take place in the UK. However, where the harm
takes place in the UK but the death takes place some
time after this in another country, then the UK courts
will continue to have jurisdiction.

What kind of harm must take place?

In most cases the initial harm (that results


in death) will be a physical injury.
However, it could well be a health impact
resulting, for example, from chemical,
germ or other kinds of toxic exposure that subsequently results in death.

What is relevant is where the harm occurs. It is irrelevant where the management failure has
taken place. So:
- the offence will not apply if the management failure was in the UK but the harm resulting in
the death was outside the UK;
- the offence will apply if the management failure was outside the UK, but the harm resulting in
the death was inside.
It is therefore possible to prosecute foreign-based companies and partnerships13 in relation to
harm (that leads to death) when the harm takes place within the UK.
Section 28 of the Act also allows the offence to apply if the harm resulting in the death takes
place:
within the territorial sea around the UK;14
on or within 500 metres of offshore oil installations;15
on a British ship,16 wherever the ship is;
on a British controlled aircraft, wherever that aircraft is;17
on a British controlled hovercraft,18 wherever that hovercraft is;
outside of the British ship, aircraft or hovercraft (wherever that may be), where the body is
outside of the vessel due to a wrecking or other kind of mishap.19

13

The application of the offence to foreign registered companies and foreign partnerships, see chapter 6
Section 28(3)(a) of the Act.
15
Section 28(3)(e) of the Act. It is necessary first for an Order in Council to be adopted under section 10(1) of the Petroleum Act
1998.
16
Section 28(3)(b) of the Act. The ship must be registered under the Merchant Shipping Act 1995
17
Section 28(3)(c) of the Act. What constitutes a British aircraft is defined by section 92 of the Civil Aviation Act
18
Section 28(3)(d) of the Act. The meaning of a British Hovercraft is defined in the Hovercraft Act 1968
19
Section 28(4) of the Act
14

22

Background to the issue of jurisdiction


The position in relation to jurisdiction in the new Act (that the offence will only apply if the harm
that resulted in the death took place within the UK) is arguably a step back from the position under
the common law and, at the very least, it allows a situation to continue where British companies
and organisations are treated differently from British citizens.
There are two kinds of situations that can result in a death abroad:
- where both (a) the gross failures that resulted in the death and (b) the death itself take place
outside UK; and
- where (a) the gross failures that resulted in the death took place in the UK, (b) but the death itself
took place outside UK.
In relation to both these options British citizens can be prosecuted. This is due to the application of
section 9 of the Offences Against the Persons Act 1886, which states:
Where any murder or manslaughter shall be committed on land out of the United
Kingdom and whether the person killed were a subject of Her Majesty or not,
every offence committed by any subject of Her Majesty in respect of any such case
shall amount to the offence of murder or manslaughter,
So, could British companies have been treated in the same way as British citizens? Section 9 relates
to the prosecution of any subject of Her Majesty. The question then is whether a company can be
considered a subject of her Majesty. Blacks Law Dictionary defines a subject as
one that owes allegiance to a sovereign and is governed by his laws. The natives of
Great Britain are subjects of the British Government. Men in free governments are
subjects as well as citizens; as citizens they enjoy rights and franchises; as subjects
they are bound to obey the law.
It appears from this definition, that being governed and bound by the laws of the sovereign is
the defining issue in relation to the definition of the subject. The fact that companies registered in
Britain are bound by the laws of the sovereign would count in favour of them being considered
subjects. It is therefore arguable that British companies could have been prosecuted for deaths
that took place abroad - however, there has been no legal case on this point.
It is however now clear that it is not possible to prosecute any organisation for manslaughter that
takes place abroad whatever the legal position may have been.

23

Jurisdiction: Reform History


In 1996, the Law Commission recommended in its report, that the offence would apply if the injury
that results in the death is sustained in England and Wales, on any vessel in territorial waters or a
British vessel elsewhere, on a British-controlled aircraft in flight outside the United Kingdom, or in
any place to which an Order in Council under section 22 of the Oil and Gas (Enterprise) Act 1982
applies. (para 8.61) In its 2000 consultation document, the Government accepted this position. It
stated:
The Government considers that there would be very considerable practical difficulties if we
were to attempt to extend our jurisdiction over the actions abroad of companies registered in
England or Wales. These difficulties would mean that the prosecution of offences committed by
English or Welsh companies within other states' territory would be practically unenforceable. Our
police have no authority to gather evidence abroad and contrary to the system prevailing
elsewhere in Europe, where written evidence is admissible, our courts have a tradition of oral
evidence and cross-examination. Furthermore, the Government will only consider taking extraterritorial jurisdiction where dual criminality exists i.e. where the behaviour concerned constitutes
an offence both here and under the laws of the country in which it occurred. We apply this policy
so that we cannot be accused of "exporting our laws". (Para 3.73)
The Government recognised that this will lead to a situation where a natural person will be
potentially liable in the English courts to prosecution for an involuntary homicide offence committed
abroad whereas an [organisation] will not be.
The CCA argued, in its response to the consultation document, that any practical difficulties in the
investigation of organisational defendants would be the same for investigating individual defendants.
It also critiqued its interpretation of dual criminality. To read CCAs response in 2000, see:
www.corporateaccountability.org/responses/hom/ccahojuris.htm
In its 2005 draft Bill, the Home Offices position remained the same. The Parliamentary Scrutiny
Committee said that in principle it should be possible to prosecute a company for corporate
manslaughter when the grossly negligent management failure has occurred in England or Wales
irrespective of where a death occurred. If this was not the case, there would be no incentive for such
companies to improve or maintain acceptable standards of health and safety in the activities they
conduct abroad. However, it accepted that there could be some practical limitations so only proposed
that jurisdiction should extend to harm that took place in Scotland and Northern Ireland (at that time
the offence only applied to England and Wales) and that provision should be made in the Bill for the
offence later to be extended at least to cover cases where deaths have occurred in the rest of the
European Union. (para 253/254). The Government in its response to the committees point about EU
Application stated that Government did not believe that it is appropriate to seek to apply UK
standards [as set out in the Health and Safety at Work Act 1974] abroad in this way.
The Bil,l introduced into Parliament in 2006, applied the offence to the whole of the UK. During
debate in Parliament, an amendment was debated that would have allowed prosecution of British
organisations where the management failure was in the UK, but the harm resulting in the death took
place abroad. In response to this, the Minister argued that, apart from the difficulties in investigating
the offence, there is also the fact that fundamentally the way a company operates overseas is a matter
for the country concerned. However, he did accept that there may well be a case for looking at
jurisdiction further down the line, but we need first to get the offence on the statute book and
working. (See Commons Committee, 29 Oct 2006, column 219, 220)

24

CHAPTER 5
DOES THE EVIDENCE RELATE TO EVENTS
ON OR AFTER 6 APRIL 2008?
The Act only becomes effective on 6 April 2008.20 It is not only necessary that the harm resulting
in the death take place on or after that date, but anything done or omitted must also take place
after that date, in order for the offence to apply. If any of the conduct or events alleged to
constitute the offence occurred before21 that date, the common law offence will continue to
apply.
What this means that is that if the offence can
only be proved on the basis of evidence of
acts, failures, decisions etc. that occurred
before 6 April, then a prosecution under the
new statutory offence cannot take place. In
such a situation the existing law will continue
to apply.
This makes it likely that prosecutions under
the offence will not take place for quite some
time, even if the death took place after 6
April 2008, since the evidence proving gross
management failure will relate to events,
decisions, inaction, and so on, that are likely
to have taken place many months and even
years before then.
This will have a particular impact upon
deaths involving large organisations which
often involve evidence that goes back a
number of years - where this evidence might,
for example, relate to decisions taken long
ago, or long-standing but poor systems of
maintenance, training, or communication of
information.

Commencement of Act: relevant sections

20. The common law offence of manslaughter


by gross negligence is abolished in its
application to corporations, and in any
application it has to other organisations to
which section 1 applies.
27 (1) the preceding provisions of this Act come
into force in accordance with provision
made by order by the Secretary of State.
(3) Section 1 does not apply in relating to
anything done or omitted before the
commencement of that section.
(4) Section 20 does not affect any liability,
investigation, legal proceeding or penalty
for or in respect of an offence committed
wholly
or
partly
before
the
commencement of that section.
(5) For the purposes of subsection (4) an
offence is committed wholly or partly
before the commencement of section 20
if any of the conduct or events alleged to
constitute the offence occurred before
that commencement.

Deaths in custody

Section 2(1)(d) and section 2(2) which together create a relevant duty of care between
organisations and for deaths in their custody and allows them to be prosecuted for failures in their
management of custody will not apply until a further commencement order is made by the
Secretary of State. The Ministry of Justices guidance says that the Government is working to

20
21

As a result of a commencement order made by the Secretary of State.


Section 27(5)

25

implement that aspect of the legislation within 3 years of the offence itself [6 April 2008], but
has indicated that a period of up to 5 years might be necessary.22
Publicity Orders

The Secretary of State will need to make a further order for the provisions on publicity orders to
apply. The Government is waiting for guidance to be issued by the Sentencing Advisory Panel on
how to sentence organisations convicted of the new offence of Corporate Manslaughter which
will in part deal with the use of publicity orders. A consultation document was issued by the SAP
in December 2007 (See Annex 3: CCAs response to SAP) and a final set of guidelines is due to be
ready by the Autumn of 2008.

22

See Ministry of Justice Guidance

26

CHAPTER 6
A TYPE OF ORGANISATION THAT CAN
COMMIT THE OFFENCE?
Section 1(2) of the Act sets out which organisations can commit the offence. These are:
Corporations incorporated in the UK or in any other country.23 This includes:
- Private and public companies (incorporated through Companies Act legislation);
- Public bodies that have been made companies
by statute. This includes, for example, local
authorities24 and NHS Trusts, and also some
crown bodies like the Postal Services
Commission and the Office of the Rail
Regulator, the Charity Commission, Postal
Services Commission and Northern Ireland
Departments;
- Companies set up under Royal Charter (such as
the BBC and some universities);

Individual culpability?

This offence can only be committed by


organisations not individuals. Section
18 of the Act explicitly states that no
individual can be prosecuted for either
aiding, abetting, counseling or procuring
(or, in Scotland, being art and part in)
the commission of the offence. (See
Box: Individuals: Reform History, p.
31)

- Companies set up under common law (such as the corporation of London);


- Limited liability partnerships;
Departments of Government and other government bodies whose names are set out in an
annexure to the Act (see list at annex 1 of this guidance). These organisations are all crown
bodies, but are not incorporated.
Police forces; and
Partnerships,25 trade unions or employer associations26 who are employers.
The Act specifically states that an organisation that is a servant or agent of the Crown is not
immune from prosecution under this Act for that reason.27 Therefore, even if the name of the

23

Corporation is defined in section 25 of the Act as not including a corporate sole but includes any body corporate wherever
incorporated.
24
Local Government Act 1972
25
A partnership is defined as (a) a partnership within the partnership Act 1980, or (b) a limited partnership registered under the
Limited Partnerships Act 1907, or a firm or entity of a similar character [to either of these] formed under the law of a country or
territory outside the United Kingdom. (Section 25)
26
Section 25 of the Act defines an employers association has having the meaning given by section 122 of the Trade Union and
Labour Relations (Consolidation) Act 1992, or Article 4 of the Industrial Relations (Northern Ireland) Order 1992
27
Section 11(1)

27

crown body is not mentioned in the


appendix to the Act, it can still be
prosecuted as long as it has been
incorporated by statute.

What is a Crown Body?

There is no clear definition of a Crown body. There


is no doubt, however, that Government
Departments are Crown bodies. In relation to other
central government organisations it depends upon
the extent to which ministers can exercise control
over the organisation. Sometimes it is clear through
the statute that set out the organisation in the first
place whether the organisation is or is not a crown
body. For instance, the Radiological Protection Act
1970 provides that, with certain exceptions, that the
Protection Board created by the Act "shall not be
taken to be a servant or agent of the Crown of the
enjoy and status or immunity of the Crown", whilst
the National Health Service and Community Care
Act 1990 states that "no health service body shall
be regarded as the servant or agent of the Crown or
as enjoying any status, immunity or privilege of the
Crown". Local authorities, hospital trusts are not
crown bodies and nor are police forces.

Whether a non-departmental public body


(NDPB) can be prosecuted as a separate
organisation depends on its legal status.
Those that are known as Executive NDPB's
will most often have been established as
corporate bodies by statute and can be
prosecuted. Other kinds of NDPBs28 do not
have a separate legal status and will often be
considered to be crown bodies. Unless their
names are set out in schedule 1 to the Act
(see annex 1 of this guidance), they cannot
be prosecuted; so a death as a result of the
activities of such an NDPB can only result
in the prosecution of the sponsoring
department of government for which it is
part, which will depend upon the failure being at the departmental level rather than at the NDPB
level.
The Secretary of State can, by order, extend the categories of organisation to which the offence
will apply.29
Which organisations cannot be prosecuted under new offence?
Schools: No state or maintained school itself can be prosecuted for this offence as they are not
corporate bodies. However, Local Education Authorities (LEA) which are incorporated by
statute and act as the employers of community and voluntary aided schools30 - can be
prosecuted. However, where the serious failures are at a school management level (however
senior) rather than at the LEA level no prosecution will be possible. Only private schools set
up as corporate bodies can be prosecuted (see Box: Public bodies within public bodies!, p. 29)
Hospitals: The situation with hospitals is similar to that of schools. NHS hospitals cannot
themselves be prosecuted as they are not corporate bodies. However, NHS Trusts which have
responsibility for the management for one or more hospitals are incorporated by statute and can
be prosecuted. Therefore, hospital deaths that are only the result of failures at a hospital level
(however senior), but not at the NHS Trust level, cannot be prosecuted (see Box: Public bodies
within public bodies!, p. 29).
Clubs: Many clubs are set up as unincorporated associations. These cannot be prosecuted.

28

See Chapter 2 of the Public Bodies: A guide for Departments http://www.civilservice.gov.uk/about/public/bodies.asp


This has to be done by affirmative resolution procedure thorough a resolution voted on by both houses of parliament,
30
In other kinds of schools, the employer is the board of governors, which generally are not corporate bodies.
29

28

Prisons: Prisons cannot be prosecuted as separate


entities in themselves though the Home Office
can be.
Special provisions
See annex 2 for an explanation of special
provisions in this Act that make technical
changes allowing for the prosecution of noncorporate bodies.
Organisations: How this differs from the
past

The common law offence only applied to (a)


private and public companies set up under
Companies Act legislation; and (b) other
corporate bodies established by statute. It did
not apply to any unincorporated bodies (e.g.
police forces, partnerships) or any crown
bodies. The application of the new offence to
crown bodies, police forces, and those
partnerships/trade unions/employer
associations that are also employers is new.
It is notable that police forces, which can be
prosecuted under the new Act, cannot be
prosecuted under health and safety law only
the Commissioner of the Police (representing
the police force) can be prosecuted.

Public bodies within public bodies!

It is often the case that government bodies are


themselves comprised of one or more separate
organisations which appear to have some kind
of separate identity. So the Home Office has
within it the Prison Service which itself is
comprised of a number of prisons. There are
many other examples like this. What happens if
a person (eg. a prison officer) died as a result
of the activities of one of these separate
organisations (a prison) - which organisation
can be prosecuted? Assuming all other parts of
the test have been met, the way to think about
this is to ask, Does the organisation (which is
the direct cause of the death) fit within one of
the organisation categories that can be
prosecuted? So with the death of a prisoner, a
prison is not a corporate body, and prisons are
not individually listed in the schedule in the
Act. So they cannot individually be prosecuted.
In that case, is there another body, which
manages the organisation that can be
prosecuted? The prison service is in charge of
prisons but it also is not a corporate body or
separately listed in the Schedule. No
prosecution of the prison service is therefore
possible. However, the prison service is part of
the Home Office and this is listed in the
schedule. Therefore the Home Office could be
prosecuted for the death of the prison officer.
However, for the Home Office to be
prosecuted, a substantial element of the
management failure must be at a senior
management level within the Home Office as
this is the body that is being prosecuted - not
within the prison. This therefore will make it
extremely difficult to prosecute deaths that are
the results of failures of bodies within public
bodies.
This kind of issue also affects deaths in schools
and hospitals.

29

Organisations: Reform History


The Law Commission in 1996 stated that the offence should only extend to all corporations irrespective
of the legal means by which they are incorporated. (Para 8.51) Although it recognised that partnerships
and other unincorporated bodies were for practical purposes indistinguishable from corporations, it
did not recommend that the offence should apply to them at the present time. (Para 8.54) The
Commission was silent on the issue of corporate bodies that were also crown bodies.
In its 2000 consultation document, the Government stated that the exclusion of unincorporated bodies
would lead to an inconsistency of approach and these distinctions might appear arbitrary.(Para 3.2.3)
It also stated that it did not wish to see enterprises deterred from incorporation and that the
Government was inclined to the view that the new offence should apply to all undertakings defined
as any trade or business or other activity providing employment. This would have been wide
enough to include most unincorporated bodies including schools. (Para 3.2.5) Although the Government
did not think that crown bodies should be able to be prosecuted for the offence, it did think that
government bodies should be held accountable where death occurs through management failure. It
recommended that courts should be able to make a declaration of non compliance with statutory
requirements a process adopted in the Food Safety Act 1990. (Para 3.2.8)
In its March 2005 consultation document, the Government changed its mind both on crown bodies, and
on unincorporated bodies - though in different directions In relation to crown bodies it argued that there
should be no general crown immunity providing exemption from prosecution. (Para 42) In relation to
unincorporated bodies, it argued that, as they had no separate legal identity and often had no recognised
structure where designated post holders must be appointed and formally represent the company, and
had a constantly changing membership they should not be able to commit the offence. (Para 44)
The Parliamentary Scrutiny Committee in December 2005 argued that the offence should apply to large
unincorporated organisations (para 62). In its response the Government said that data from the HSE
showed that only 2% of all of its prosecutions against an unincorporated body and most of these were
very small organisations. However, the Government accepted that there should be no readily avoidable
gaps in the law and will consider further whether there are any straightforward ways of extending
the application of the offence to some types of unincorporated body. (page 4)
The Bill introduced into Parliament in 2006 did not apply to unincorporated bodies; however, at the
House of Lords report stage and under pressure, the Government amended the Bill so that it also
applied to partnerships, trade unions and employer organisations (as long as they employed staff).
The Ministry of Justice accepted that this was a cautious approach and says in its guidance note: We
think it is right to take a cautious approach in extending the offence to unincorporated associations: this
will represent a new extension of the criminal law to these organisations. Extending the offence to
partnerships will ensure that an important range of employing organisations, already subject to health
and safety law, is within the offence and that large firms are not excluded because they have chosen not
to incorporate. However, the Government also amended the Act so that government can, by order,
extend the categories of organisation to which the offence will apply.

30

Individuals: Reform History


One of the most contentious questions in the reform debate has been whether the offence should
apply in some way to individual directors or managers. This could have been made possible in two
ways: allowing an individual to be prosecuted for either: (a) aiding, abetting, counseling or
procuring the offence by the organisation; or (b) for a separate offence relating to that individuals
contribution to the offence committed by the organisation. The Law Commissions report in 1996
considered that individuals should not be able to be prosecuted as a secondary party to the offence
in either of these ways (para 8.58).
The Home Offices 2000 consultation, however, took a different position. It stated that it was
concerned that failing to take action against individual directors and senior managers would fail to
provide a sufficient deterrent, particularly in large or wealthy companies or within groups of
companies; and would not prevent culpable individuals from setting up new businesses or managing
other companies or businesses, leaving the public vulnerable to the consequences of similar conduct
in the future by the same individuals. It stated that it was inclined to the view that action against
individual directors or officers might be justified even in cases where a company found guilty of
corporate killing could pay the fine imposed by the court and/or comply with a remedial order.
(para 3.4.9) It proposed that any individual who could be shown to have had some influence on, or
responsibility for, the circumstances in which a management failure falling far below what could
reasonably be expected was a cause of a person's death, should be subject to disqualification from
acting in a management role in any undertaking carrying on a business or activity in Great Britain.
The Government considered going even further. It said: However, it has been argued that the public
interest in encouraging officers of undertakings to take health and safety seriously is so strong that
officers should face criminal sanctions in circumstances where, although the undertaking has
committed the corporate offence, it is not (for whatever reason) possible to secure a conviction
against an individual. In order to go down this route, it would be necessary to create an additional
criminal offence in respect of substantially contributing to the undertaking in question's corporate
offence, leading to the death of a person. The Government has reached no firm view on this
suggestion. (para 3.4.13)
However, by 2005, the government had totally changed its mind. In its consultation document it
said: We are clear that the need for reform arises from the law operating in a restricted way for
holding organisations themselves to account for gross negligence leading to death. Our proposal to
tackle this focuses on changing the way in which an offence of manslaughter applies to
organisations, and this is a matter of corporate not individual liability. (para 47) Not only did the
Bill not include an additional offence, but it also precluded the possibility of prosecuting an
individual for aiding and abetting the offence.
The Parliamentary Scrutiny Committee criticised this view and argued that there should be a
separate offence that allowed a director to be prosecuted for consenting or conniving in the offence
by the organisation. In response to this, the Government said that such an offence, by enabling a
person to be convicted on the basis of neglect, would introduce a substantially lower threshold
[of culpability] than is required either for the new corporate offence or for manslaughter. It
argued that in order for an individual to be found guilty as an accessory (aiding and abetting etc),
an individual would need to be aware of the picture of failing in the organisation, at least
contemplate it being grossly negligent and act in a way that supported or sought to bring that
about. However, it is likely that in these circumstances an individual charge of manslaughter
would in any event be possible. (p. 30)
. In parliamentary debate, it argued that an individual who could be prosecuted for aiding and
abetting could in any case be prosecuted for the individual offence of manslaughter. To show that
an individual aided and abetted, counselled or procured
an offence it would generally be necessary
31
to show that the accessory had a similar state of mind as the main offender, or at least knew or
intended that the offence would be committed. In the context of corporate manslaughter this would
mean that an individual would need to be aware of the picture of failing in the organisation, at least

Parent Companies: Reform History


The Law Commissions 1996 report did not mention whether parent companies could be held
responsible for deaths within their subsidiaries. However, in 2000, the Governments consultation
document stated that
The Government is concerned that it should not be possible for holding companies to attempt
to evade possible liability on a charge of corporate killing through the establishment of
subsidiary companies carrying on the groups riskier business which could most readily give
rise to charges of corporate killing. Moreover, we are concerned by the possibility that a
subsidiary company within a large group of companies might not have insufficient assets to
pay a large fine, and that, in such cases, liability could not be transferred to its parent company.
The Government recognises that a company must be convicted on a charge of corporate killing
in proper proceedings, and that such liability cannot simply be moved around within a group of
companies. Equally, we believe that it is important that group structures should not be used as a
mechanism for evasion. The Government therefore proposes that the prosecuting authority
should also be able to take action against parent or other group companies if it can be shown
that their own management failures were a cause of the death concerned. (para 3.4.5)
In 2005, with the publication of the new draft bill, the Governments position had changed. Since
the new offence was based on the need to prove a duty of care and parent companies did not owe
duties of care in relation to the activities of their subsidiaries, the government took a position that
parent companies could only be prosecuted for breaching its own duties of care as a company.
(para 37)
The Parliamentary Scrutiny Committee agreed with the Governments position in 2000 and concluded
that we agree that it should be possible to prosecute parent companies when a gross management
failure in that company has caused death in one of their subsidiaries. (para 113) It went onto say that
We are concerned by the suggestion that it may not be possible to prosecute parent companies under
the current law, as courts have not ruled that parent companies have a duty of care in relation to the
activities of their subsidiaries. This is an additional argument in favour of our recommendation that the
offence should not be based on civil law duties of care. (para 115)
In its response the Government did not change its position. In response to a concern that this would
result in companies restructuring themselves, it stated: We do not believe that the new offence will be
a dominant consideration for structuring decisions, which are more likely to be taken for reasons of
tax, limited civil liability, effective collaboration in a joint venture or local regulatory conditions.
(page 12)
The issue was discussed in the House of Lord Grand Committee when an amendment was tabled
which would have allowed parent companies to be prosecuted for an offence if they failed to take all
reasonable steps in preventing their subsidiary from committing an offence. Lord Brennan stated that,
I have had a case in which a subsidiary operated a grossly unsafe system of work and the parent
company, which knew about it because the safety officer in the subsidiary company had complained
about it, but which had nevertheless let the company operate that system refused its request for
funding to introduce a safety system. Lord Bassam of Brighton for the Government however said,
the parent company in a group of companies is a separate legal entity and as such is not subject to
any legal obligation to prevent those subsidiaries committing any crime. (see House of Lords, Grand
Committee, 11 Jan 07, columns GC165, 166)
See also Box: Parent companies and duty of care, p. 34

32

CHAPTER 7
DUTY OF CARE WITHIN THE ACT
It is necessary to show that there was a relevant duty of care between the organisation who
might be prosecuted and the person/people who died. This is perhaps the most complex area of
the offence both for lawyers and for lay people. This question can be divided into three separate
parts, which we deal with in three separate chapters.
For a prosecution against an organisation to be successful it is necessary to:
(a)

Show that there was an actual duty of care owed by this particular organisation to this
particular person who died. This is discussed in Chapter 8.

(b) Show that the relationship between the organisation alleged to have committed the offence
and the person who died, which creates this duty of care, falls within one of the categories
of relevant duties of care as set out in section 2 of the Act (i.e. employer/worker or
manufacturer/consumer etc). This is discussed in Chapter 9.
(c) Show that no exclusions apply. This is discussed in Chapter 10. These are exclusions
relating to deaths involving:
- public policy decision making by a public authority;
- activities which by their very nature can only be undertaken by a state body (what is
called in the Act exclusively public functions);
- military activities;
- policing and law enforcement activities;
- emergency services;
- child protection and probation functions;
- statutory inspections.
To determine whether or not there is a
relevant duty of care, it will often not be
necessary to go through these three steps as
outlined above. If, for example, one knows
right from the start that an exclusion applies
to a particular kind of activity in (c), then
there is no need to consider questions (a) and
(b).

Rule of Thumb

To try and simplify this process, we have


developed a rule of thumb box, which
provides a short hand summary of what this all
means to particular kinds of deaths. See p. 52

33

CHAPTER 8
IS THERE A DUTY OF CARE BETWEEN
THE ORGANISATION AND THE DECEASED?
There is a requirement that an organisation can only be prosecuted if it owed a relevant duty of
care to the person or persons who died. The first part of this is whether there was, in fact, a duty
of care.
The concept of duty of care comes from the civil law of negligence. In the context of personal
injury compensation, it describes particular relationships between organisations and individuals
where the law requires organisations to take reasonable steps to secure the health and safety of
the individual. (In the law of negligence, where there has been a failure to take these reasonable
steps, and harm is caused as a result, the organisation will have to pay compensation.)
The question of whether a duty of care does exist is generally determined by reference to three
broad criteria: (a) is the damage foreseeable? (b) is the relationship between the defendant and
victim sufficiently proximate? (c) is it fair just and reasonable to impose such a duty? The law
says, for example, that there is a duty of care on the part of an employer to take reasonable steps
to secure the safety of its employees and others working for it; an occupier of land has
responsibilities towards the safety of those who enter onto the land; a manufacturer has
responsibilities towards consumers who might use the product; hospital trusts towards their
patients; train operators toward their passengers etc.
The particular relationship between the
organisation and individual can be decisive in
determining whether or not there is a duty of
care, for example: if the deceased worker is an
employee and the employer is at fault; if the
deceased person is a train passenger and the train
operator is at fault; or if the person died in
custody. In all these situations, the law is clear
that a duty of care relationship exists. The
Government therefore argues that we would
expect the question of whether an organisation
owed a duty of care or not generally to be
straightforward.31 However, in other situations
it will be necessary for the courts to consider
other issues relevant to the facts of the case the
proximity of the relationship of the organisation
to the deceased, the forseeability of harm, and
consideration of whether it is just, fair and
reasonable to impose a duty of care.
31

House of Lords, Grand Committee, 15 Jan 07, column GC179

34

Parent Companies and Duty of Care

Parent companies can be prosecuted, but only


in relation to their own breaches of the
relevant duty of care which result in a
death. Since under current law, parent
companies do not owe a duty of care in
relation to the activities of their subsidiaries,
they cannot be prosecuted for deaths resulting
from the activities of their subsidiaries. As the
Government said in the House of Lords: the
parent company in a group of companies is a
separate legal entity and as such is not subject
to any legal obligation to prevent those
subsidiaries committing any crime.
(House of Lords, Grand Committee, 11 Jan 07,
column GC166)
See Box: Parent Companies: Reform History,
p. 32

In relation to the 2007 Act, there can be no prosecution unless it is established that the
organisation owed a duty of care to the person who died. Without getting into a lot of law the
easiest way to think about this is whether or not under ordinary circumstances a person would be
able to sue the organisations for compensation. If the answer to that is yes, then there is likely to
be a duty of care.
There are three situations where the Act says that there will be a duty of care relationship even
though, if the ordinary principles of the civil law of negligence were to apply, there would be no
duty of care. These are situations where:
- a claim under the law of negligence (requiring a duty of care relationship) has been replaced
by a statute that allows compensation to be given under rules of strict liability (so that it is not
longer necessary to prove a duty of care). An example of this is the Carriage by Air Act 1961 where passengers, in particular circumstances, do not need to prove a duty of care to receive
compensation.
- the organisation and the deceased had been engaged in a criminal enterprise. In such a
situation, the ordinary law of negligence says that no duty of care will arise between the
organisation and the deceased and so the victims would not normally claim compensation.32
- the organisation argues that the victim has voluntarily taken on the risk involved when
undertaking the activity which resulted in his death. In such a situation, a duty of care would
normally not exist.
The question of whether or not there is a duty of care and indeed whether it is a relevant one
is for the Judge (not the jury) to decide. 33 The Government argued that, since the question of
whether a duty arose was a matter to be decided by reference to case law, it was more sensible for
the judge to make that decision. It also argued that this would ensure that there was consistency
between civil and criminal law.34
In most cases it should be straightforward whether or not a duty of care exists.

32

This a doctrine called ex turpi causa non oritur actio - no lawsuit can arise from an illegal cause. An example of this kind of
situation was the case of Wacker, where a driver was prosecuted for the manslaughter of 58 immigrants who suffocated to death
in the back of his lorry while being illegally smuggled into the country. At the trial, the drivers defence lawyer had argued
initially successfully - that the driver did not owe a duty of care to the immigrants (and therefore could not be prosecuted for their
manslaughter) because they were part of a joint criminal act, and that under the law of negligence no duty of care arose in that
situation
33
Section 2(5)
34
House of Commons Committee 24 Oct 2006, column 104

35

Duty of Care: Reform History


In the 1996 Law Commission and the 2000 Home Office proposals, there was no requirement to show
that there was a duty of care relationship between the organisation and the individual. Indeed, the
Law Commission specifically stated that: It is () clear that the terminology of negligence and duty
of care is best avoided within the criminal law because of the uncertainty and confusion that surround
it.
The requirement for a duty of care relationship was first introduced in the Governments 2005
consultation document. It argued that it should not be possible for an organisation to be prosecuted for
a failure when it had no legal duty to act in the first place. It said that the new offence therefore needed
to be grounded within a set of positive legal duties those enshrined with the duties of care in the law
of negligence which were already imposed upon the organisation. (para 16)
It also argued that basing the new offence around duty of care meant that it reflected the legal test of
manslaughter as it applied to individuals and therefore it will be clear that the new offence does not
apply in wider circumstances than the current offence of gross negligence manslaughter, to which all
companies and other corporate bodies are already subject. (para 17) It also means in effect that the
company knows that if it could be sued for something in negligence it can be prosecuted under this
offence.
However, in its report, the Parliamentary Scrutiny Committee concluded that different rules should
apply to determine when a person owes a duty of care for anothers health and safety in the context of
liability for damages under the civil law and in the context of liability under the criminal law. It
proposed that the Home Office should remove the concept of duty of care in negligence from the
draft Bill and return to the Law Commissions original proposal that the offence should not be
limited by reference to any existing legal duties but that an organisation should be liable for the
offence whenever a management failure of the organisation kills an employee or any other person
affected by the organisations activities. (para 104, 105) The Government, however, rejected this
position.
A number of amendments were debated in the Commons and the Lords that would have grounded the
offence in statutory duties rather than, or as well as, a civil law duty of care. It was argued that,
unlike civil law duties that are not owed by public bodies in a wide range of circumstances statutory duties were more encompassing. It was argued that unless the offence was based on statutory
duties, there would be a situation where a public body could be prosecuted for a breach of health and
safety law, but if the death was the result of a gross breach, the public body could not be prosecuted
for the offence of manslaughter. (House of Lords, Grand Committee, 15 Jan 07, column GC169).
However, all the amendments were resisted by the Government
See Box: Governments arguments in favour of duty of care, p. 37

36

Governments arguments in favour of duty of care


Below is an extract from the Governments response to the Parliamentary Scrutiny Committees
report. It provides a good summary of the arguments put forward by the Government in support of
basing the offence around civil law duties of care.
Many cases that are likely to come within the ambit of this offence are ones where it is alleged that
an organisation has failed to act in a way that it ought to have done. We do not think that question
can be adequately addressed without reference to an organisations duties to take reasonable care.
By contrast, the Law Commissions original proposal, that an organisation should be liable
whenever a management failure causes death, would leave this aspect of the offence fundamentally
at large. This approach would create uncertainty about the range of new circumstances in which a
court might hold that an organisation was under an obligation to act, and by finding liability in novel
circumstances effectively impose new obligations on organisations. Whilst a new offence needs to
provide a new way of attaching liability to organisations, we do not think that it should in itself seek
to redefine the circumstances in which an organisation must act. ..
One possibility here, as was suggested to the Committees, is to build the offence on statutory health
and safety duties, such as those imposed by the Health and Safety at Work Act 1974 and Merchant
Shipping Act 1995. However, those duties are primarily designed to establish regulatory safety
regimes, and whilst some requirements are very specific, other duties are drafted very widely to
afford enforcers a wide degree of flexibility in securing safe working practices. Their focus,
therefore, is not to identify the particular circumstances when organisations have a duty to take
reasonable care, but to provide both broad and specific obligations designed to secure safety at
work. As such, we do not consider that they are offer a suitable way of defining the scope of this
new offence.
We believe the right starting point for the scope of the new offence must be the existing criminal
law test for gross negligence manslaughter, under which companies and other corporate
organisations can currently be prosecuted. The leading House of Lords ruling in this area, setting out
the accepted definition for this offence, states that the ordinary principles of the law of negligence
apply to ascertain whether or not the defendant has been in breach of a duty of care towards the
victim who has died: Adomako [1995] 1 AC 171. Since the Law Commissions report in 1996 this
has been confirmed on a number of occasions as the applicable test. Proposing to rely on the
common law duty of care is not therefore a departure for the criminal law in this area.
The common law duty of care provides a long developed framework for establishing circumstances
in which organisations (and others) ought to be exercising reasonable care for the safety of others. It
includes tests of foreseeability of damage, proximity of relationship and whether it is fair, just and
reasonable to impose a duty. Where questions of management failure are concerned, we see sense in
having a coherent approach to the duties organisations are under.
The Committees were also concerned that requiring a duty of care added unnecessary complexity.
However, there are already a number of well established categories of duty of care (for example, an
employers duty of care for his employees, an occupiers duty towards those in his premises, a train
operators duty towards its passengers) so in many cases this issue will be easily resolvable. In some
cases the question will be more complex. A pragmatic response is to make the existence of a duty of
care a question for the judge to determine, and the draft Bill makes provision for that to be the case.
This does not in anyway interfere with the jurys key task of determining whether the conduct in
question amounted to a gross management failure. (pages 8, 9)
See Box: Duty of Care: Reform History, p. 36

37

CHAPTER 9
DOES THE DUTY OF CARE FIT WITHIN ONE OF THE CATEGORIES
SET OUT IN SECTION 2 OF THE ACT?
The 2007 Act states that not only must there be a duty of care under the law of negligence owed
by the organisation to the deceased person but that the duty of care must also be a relevant
one. Sections 2(1) and 2 (2) of the Act set out a total of seven categories within which the
relationship between the putative defendant organisation and the deceased must fall. If the
relationship between the organisation and the individual does not fall within one of these
categories, there can be no prosecution of the organisation even when a civil law duty of care
existed. The categories of duties of care in section 2 of the Act are therefore a sub-set of civil law
duties of care: the new offence does not impose new duties of care where these are not currently
owed.35 The categories are as follows.
1. Employer duties

This is a duty owed [by an organisation] to its employees or to other persons working for the
organisation or performing services for it.36
This duty relates to situations where the death occurs in the course of work - and includes the
employers obligation to provide a safe system of work to employees and other people whose
work it is able to control. It is within this category that most prosecutions under this Act are
likely to take place.
The person who died could either be an employee, a self employed person, a person working for
a sub-contractor, a volunteer, a consultant, a secondee or a person providing services or
undertaking work for the organisation in some other capacity.
The alleged failure would be on the part of the employer, or the organisation for which work was
being done or services performed.
2. Occupier Duties

This is a duty owed [by an organisation] as occupier of premises.37


This duty relates to situations where the death occurred as a result of defective or dangerous
building or land and the occupiers duty to ensure that they are kept in a safe condition. These
are duties set out in occupiers liability legislation.38

35

Page 5. Explanatory Memorandum to the Act, http://news.bbc.co.uk/1/hi/uk/7326311.stm


Section 2(1)(a). The term consideration in this context essentially means that something is provided for a payment.
37
Section 2(1)(b). The word premises in the Act is defined to include land, buildings and moveable structures. (Section 25)
38
This includes the duties set out in: the Occupiers Liability Act 1957, the Defective Premises Act 1972 and the Occupiers
Liability Act 1984 (in relation to England and Wales; the Occupiers Liability Act 1984 (in relation to Scotland); and the
Occupiers Liability Act 1957, the Defective Premises (Northern Ireland) Order 1975, the Occupiers Liability (Northern Ireland)
Order 1987 and the Defective Premises (Landlords Liability) Act (Northern Ireland) 2001 (in relation to Northern Ireland).
36

38

The person who died could, for example, be someone knowingly (i.e. by trespassing) or
unwittingly gaining access to a railway line or crossing, be a guest in a hotel, someone walking
through a farmers field, a child playing on a building site, or a person falling down a manhole where the track operator, hotel owner, the land owner, the contractor, or the local authority was at
fault.
This category might also cover deaths from MRSA as a result of a hospital trust failing in its
hygiene responsibilities as an occupier.39
3. Duties owed as supplier of goods and services

This is a duty owed in connection with supply by the organisation of goods or services (whether
for consideration or not).40
This duty relates to situations where the person who died is a passenger or a customer and the
organisations duty to ensure that the goods or services they provide are safe. It does not matter
that these goods or services are provided for free.
The person who died could be a hospital patient, a train passenger, a child on a school trip, a
person who has purchased a product from a shop, a customer at a restaurant where the hospital,
the train company, the local education authority, the manufacturer/retailer, or the restaurant is at
fault.
It could also include situations where the death was the result of failures on the part of a
consultant, surveyor or architect.
Any death resulting from the supply of any service by a public body could be included in this
duty of care category for example, social services although there are exemptions in the Act,
which limit the cases where this would apply (see Chapter 10, below). It is important to note that
this duty is not intended to cover deaths resulting from activities of public bodies that are for the
benefit of the community at large but without supplying services to particular individuals.41
Examples of this might, for example, be the setting of regulatory standards by central
government, or the issuing of guidance to local authorities.
4. Duties owed by commercial activities in general

This is a duty owed in connection with the carrying on by the organisation of any other activity
on a commercial basis.42
This duty is a catch-all duty in relation to any duty of care owed by both private businesses and
public bodies in relation to their commercial activities, which are not covered by the duties set
out above. For example, this would cover the death of a passerby as a result of a falling scaffold,
or deaths of members of the public caused by a work-related road traffic vehicle (e.g. a driver

39

These kinds of deaths could also be covered in other categories of duty of care, see below
Sections 2(1)(c)(i)
41
See Explanatory Memorandum , para 23. The Government specifically argued that the word supply should not be replaced by
provide (see House of Commons Committee , 24 Oct 2006, column 96).
42
Sections 2(1)(c)(iii)).
40

39

falling asleep at the wheel, or through defective maintenance). It also covers those activities of
public bodies for which people pay.
The Explanatory Memorandum states that this category ensures that activities that are not the
supply of goods and services but which are still performed by companies and others
commercially, such as farming or mining, are covered by the offence.43 It is, however, not clear
what kinds of farming or mining deaths this could cover that would not already be covered by the
other categories.
5. Duties relating to construction, maintenance, and storing

There are two categories here. The first is a duty owed in connection with the carrying on by the
organisation of any construction or maintenance operation44 and the second is a duty owed in
connection with the use or keeping by the organisation of any plant, vehicle or other thing.45
It is not entirely clear what kinds of
deaths these two particular categories
of duties will cover that are not
already covered by other categories.
It would seem that deaths resulting
from construction or maintenance
operations, or from the use or keeping
of plant and vehicles, will already be
covered by other relevant duties of
care set out in the Act either with
the organisation being an employer, a
supplier of services (e.g. vehicle
maintenance) or because it is
operating commercially.

Meaning of Construction or maintenance operations

Section 2(7) defines this to include operations of any of


the following descriptions
(a) construction, installation, alteration, extension,
improvement, repair, maintenance, decoration,
cleaning, demolition or dismantling of
(i) any building or structure,
(ii) anything else that forms, or is to form, part of the
land, or
(iii) any plant, vehicle or other thing;
(b) operations that form an integral part of, or are
preparatory to, or are for rendering complete, any
operations within paragraph (a).

The Explanatory Memorandum to the Act, however, states that it is necessary to have this
category of relevant duties of care to cover deaths not otherwise included in the other duties of
care - resulting from public sector bodies undertaking construction or maintenance operations.46
It is notable that maintenance operations includes cleaning as part of its definition so this is
another category within in which deaths in hospitals from lack of hygiene could fit.
The use of the term other thing in the clause relating to the construction or maintenance
operations was deliberately chosen to ensure that the harm resulting from all substances
hazardous to health are included and it applies to the use of drugs in hospitals, as well as to the
storage of petrol .47
43

Para 22, http://www.opsi.gov.uk/Acts/acts2007/en/ukpgaen_20070019_en_1


Sections 2(1)(c)(ii)
45
Sections 2(1)(c)(iv)
46
p. 5: many circumstances, duties of care owed, for example, to ensure that adequate safety precautions are taken when
repairing a road or in maintaining the safety of vehicles etc will be duties owed by an organisation in relation to the supply of a
service or because it is operating commercially. But that may not be apt to cover public sector bodies in all such circumstances.
These categories ensure that no lacuna is left in this respect.
47
See House of Commons Committee, 24 Oct 2006, column 100.
44

40

6. Duties owed to those in prison, police of hospital custody

A duty owed by an organisation towards a person who is: (a) detained at a custodial institution48
or a custody area at a court or police station; (b) detained at a removal centre or short-term
holding facility; (c) being transported in a vehicle or being held in any premises in pursuance of
prison escort arrangements or immigration escort arrangements; (d) living in secure
accommodation in which he has been placed; or (e) a detained patient.49
This category will not come into effect for at least 3 years and possibly as many as 5. It covers
deaths of people in either prison or police custody. It is important to note that this does not cover
people arrested but not yet detained in a custodial institution it would not therefore cover police
restraint deaths outside police stations or other kinds of deaths at the hands of the police.

48

Section 2(7) defines this to include a prison, a young offender institution, a secure training centre, a young offenders
institution, a young offenders centre, a juvenile justice centre or a remand centre (section 2(7))
49
The meaning of detained patient is set out in section 2(7).

41

CHAPTER 10
EXEMPTIONS TO THESE CATEGORIES OF
RELEVANT DUTY OF CARE
The 2007 Act sets out a number of exemptions to these categories. It is important to recognise
that most of these exemptions do not affect deaths involving either employers duties to
employees and others at the workplace, or occupiers duties.
Deaths resulting from public policy
decision-making by a public
authority

Where any death is a result of a


public authority (see Box: What
constitutes

public

authority)

making a decision dealing with


matters of public policy (including
in particular the allocation of public
resources or the weighing of
competing public interests)50, the
public authority does not owe a
relevant duty of care. This
exemption applies to all the
categories of duties of care
including
those
that
involve
employers and occupiers.

What constitutes a public authority

The meaning of a 'public authority' in the Act is the same


as that in section 6 of the Human Rights Act 1998. This
therefore includes obvious pure public authorities (such
as government departments, the police and the fire
service) and also quasi-public and private bodies that
carry out 'functions of a public nature' (but only in
relation to those particular functions). So far, the courts
have interpreted 'functions of a public nature' quite
narrowly, excluding all functions of private care homes,
for example. Quasi public and private bodies are only
likely to meet the test if:
- their structures and work are very closely linked with
the delegating or contracting out State body (for
example, a housing association established and
effectively controlled by a Council);
- they are exercising powers of a public nature directly
assigned to it by statute; or
- they are exercising coercive powers devolved from the
State (for example, a private mental hospital where
people are detained under the Mental Health Act).

There is some uncertainty as to what


kinds of public policy decisions will
be exempted. Examples given in the
Explanatory Memorandum to the Act indicate that these are likely to refer to situations where the
courts have already decided there is no duty of care in negligence as they involve competing
public priorities for example, decisions by Primary Care Trusts about the funding of particular
treatments, a decision by the Department of Health not to issue interim advice about the safety
of a particular drug,51 or a decision by a local council to allocate its resources in a particular
way.52
The Ministry of Justices guidance indicates that these decisions must be of a strategic nature
within the organisation and not cover the management of resources.53 In Parliament, the
Minister said that the exemption was not about the management of resources. Once a public
50

Section 3(1)
Para 25 of the Explanatory Memorandum
52
House of Lords, Grand Committee, 15 Jan 07, column GC222
53
The Guidance states that: This covers, for example, strategic funding decisions and other matters involving competing public
interests. But it does not exempt decisions about how resources were managed. In Parliament, the Minister spoke of High level
decisions concerning the allocation of resources, the weighting of competing interests or the establishment of priorities. (See
Commons Committee, 24 October 2007, column 107)
51

42

body has embarked on a particular activity, it must fully observe its safety responsibilities and
cannot plead lack of resources as a defence.54
It could be argued that this explicit exemption is unnecessary since the kinds of circumstances
where such public policy decisions could be alleged to be a cause of a death will either not create
a duty of care or not fit any of the categories of relevant duty of care in section 2. However, the
government has put this exemption in to be absolutely certain that these strategic public policy
decisions cannot be the basis of a manslaughter prosecution.
Deaths resulting from an activity considered to be an exclusively public function

Where any death results from an organisations activities which are in the exercise of an
exclusively public function, the organisation does not owe a relevant duty of care.55
This exemption, however, does not apply where the deceased is an employee of the organisation
(or to others working for the organisation) or where the death is the result of the organisations
responsibility as an occupier.56
Exclusively public functions fall into two categories:
(a) functions that fall within the prerogative of the crown. These include activities that are at
the heart of state responsibility such as concluding treaties, conducting diplomacy and
deploying troops overseas or maintaining the peace in the United Kingdom.57
(b) functions which by their nature, can only be exercised by statutory (or prerogative)
authority that is to say must be of a sort that cannot be independently performed by a
private body.58 As the Explanatory Memorandum states:
This does not exempt an activity simply because statute provides an organisation with
the power to carry it out (as is the case, for example, with legislation relating to NHS
bodies and local authorities). Nor does it exempt an activity because it requires a license
(such as selling alcohol). Rather, the activity must be of a sort that cannot be
independently performed by a private body. The type of activity involved must
intrinsically require statutory or prerogative authority, such as licensing drugs or
conducting international diplomacy.59 (emphasis added)
Therefore, the Governments position is that whilst the NHS provides medical services under a
statutory framework, medical treatment is not an exclusively public function. That is so, because
there is nothing intrinsic to medical treatment that requires statutory powers - private
organisations can also offer medical treatment. Examples of exclusively public functions, given
by the Government, have been the issuing of driving licenses, the granting of planning
54

House of Commons Committee, 24 October 2007, column 108


Section 3(2)
56
Section 2(1)(a) of (b) of the Act
57
House of Lords, Grand Committee 15 Jan 07, column GC 183. So the last example, maintaining peace in the United Kingdom
would encompass activities conducted during a civil emergency (an example given in the Explanatory Memorandum).
58
Ministry of Justice Guidance, p. 10
59
Para 27
55

43

permissions and the operational activities of the armed forces.60 However, the exemption does
not cover activities simply because a license is required to perform those activities (e.g. a
television license).
It is important also to note that the exemption is not intended to cover activities that are ancillary
to a public function. So keeping people in custody is intrinsically a public function, but secondary
activities such as providing catering to prisoners or responding to their health care needs are
not.61
Deaths arising from Ministry of Defence activities

The Ministry of Defence (MOD) is a crown body named in Schedule 1 of the Act so it can
technically be prosecuted. However, as set out above, in the chapter on jurisdiction (see Chapter
4), the MOD cannot be prosecuted for deaths that it may cause abroad. In addition, a very wide
range of operational military activities will be exempt by virtue of being exclusively public
functions (see above).
Section 4 of the Act in effect confirms in further detail MOD immunitys in relation to
operational activities as well as extending it to deaths of its own soldiers in those situations. 62
These are:
- operations, including peacekeeping operations and operations for dealing with terrorism, civil
unrest or serious public disorder, in the course of which members of the armed forces come
under attack or face the threat of attack or violent resistance;
- activities carried on in preparation for or directly in support of these operations;
- training of a hazardous nature, or training carried out in a hazardous way, which it is
considered needs to be carried out, or carried out in that way, in order to improve or maintain
the effectiveness of the armed forces with
respect to such operations.
Levels of MOD immunity
The MOD has received a number of crown
censures for health and safety failings, some of
which involved fatalities in the way in which
training has been carried out. For example [one
man] drowned in a cave in Wales, whilst
undergoing adventurous training. The MOD
has also received a crown censure about [the
death] of a Royal marine during recruit training.
Furthermore, arrangements for monitoring
and reviewing preventative measures were
criticised in a case involving the accidental
shooting of a solider by a gun used in an
improvised firing position. None of these cases
would be covered by the exemption.
House of Commons, Committee stage, 24 Oct 06,
column 120

In Parliament, the Minister explained that this


exemption is based on the combat immunity
that the civil law already provides (i.e. the
courts have held that there is no duty of care
owed by the MOD to anyone in such
situations), and focuses on difficult
operational conditions in combating terrorism
and potentially violent peace keeping
operations. He went on to say that we do not
seek to exempt the military generally and
much of the day to day activities of the armed
forces, on bases and patrolling the sears, will
be covered. The Government has confirmed
that the exemption is not intended to include
60

House of Lords, Grand Committee, 17 Jan 07, column GC228


See House of Commons, Committee stage, 24 Oct 2006, column 111: House of Lords, Grand Committee, 15 Jan 07, column
GC183
62
Section 4(1). The exemption relating to exclusively public functions does not relate to deaths of employees etc.
61

44

routine training, training for new roles or equipment, adventurous training, or the normal testing,
evaluation and maintenance of equipment.63 It said that: The exemptions deal with activities that
are in preparation for, or directly in support of particular operations. We think that supports a
narrow meaning of the exemption where the police or Ministry of Defence will need to establish
a proper connection between the activities in question and the relevant operational activity.64
Examples of what would fall into the exemptions include the organisation of forward
deployments in immediate preparation of combat; reconnaissance missions; the establishment of
supply chains in readiness for operations; and some conditioning exercises such as live fire
training exercises or acclimatisation activities that are designed to prepare member of the armed
forces for the particular circumstances that they are likely to encounter.
In addition, special forces do not owe any relevant duty of care in relation to any death they
may cause. Special forces are defined as those units of the armed forces the maintenance of
whose capabilities is the responsibility of the Director of Special Forces or which are for the time
being subject to the operational command of that Director.65 The exemption would include a
situation where a member of the special forces died due to his/her unsafe living quarters.
In effect, this means that the MOD can only be prosecuted in the context of non-operational
activities. This could include, for example, deaths in the context of vehicle or building
maintenance, failures to maintain safe systems in non-hazardous routine training, defective
buildings, or bullying at a barracks.
Deaths resulting from policing and law enforcement activities

Section 5 of the Act states that police forces and other public authorities carrying out policing
functions (that is to say functions of the same or a similar nature as those of police forces) do
not owe a relevant duty of care in relation to deaths either of the police officer or a member of
the public when the death take place as a result of:
- operations for (a) dealing with terrorism, civil unrest or serious disorder, (b) where they
involve the carrying on of policing or law-enforcement activities, and (c) officers or
employees of the public authority in question come under attack, or face the threat of attack or
violent resistance, in the course of the operations. All three of these circumstances must exist
for an operation to be defined as such;
- activities carried out in preparation for, or directly in support of, such operations; or
- training of a hazardous nature, or training carried out in a hazardous way, which it is
considered needs to be carried out, or carried out in that way, in order to improve or maintain
the effectiveness of officers or employees of the public authority with respect to such
operations.
This means that those responsible for any action by the police in carrying out an anti-terrorist
operation that leads to the death of an individual could not be prosecuted, no matter how culpable
the management structure of the police service might have been. However, that same police force
63

House of Commons Committee meeting, 24 Oct 2006, column 115: House of Lords, Grand Committee, 17 Jan 07, column
GC230.
64
House of Lords, Grand Committee, 17 Jan 07, column GC230
65
Section 4(4)

45

could be prosecuted under health and


safety legislation.66
An example of a non-police body carrying
out these functions is when prison service
officers are faced with a riot within a
prison.67

How wide is police immunity?

The exemption therefore operates to exclude


circumstances where the pursuit of law enforcement
activities has resulted in a fatality to a member of the
public this will include decisions about and
responses to emergency calls, the manner in which
particular police operations are conducted, the way in
which law enforcement and other coercive powers
are exercised, measures taken to protect witnesses
and the arrest and detention of suspects [and
includes action by the immigration authorities] to
arrest detain or deport an immigration offender.
Para 31, Explanatory Statement

These exemptions are very similar to those


relating to the military (see above). The
Government has emphasised that this
reflects the approach adopted in the
existing law of negligence, which has held
that the police cannot be held liable for harm caused during the policing of violent disorder where
the police come under attack or threat of attack (i.e. courts held that police do not owe duty of
care in such a situation).
The Government has emphasised that the wording in preparation for should be construed
narrowly. This is about training which is either hazardous in itself, or must necessarily be
carried out in a hazardous way in order to prepare law enforcers for dealing with situations such
as combating terrorism or serious public disorder where the officers are faced with the violence
or the threat of it I reassure the Committee that the exemption will not extend to routine
training which is negligently carried out in a hazardous way. But the police do have to undergo
training which is, by its nature, hazardous. For example, the police experience real petrolbombing in training that they undergo to deal with riots.68
The Government has also pointed out that the exemption does not extend to public authorities
that are involved in serious disturbances but are not responsible for countering them, nor for
training related to their roles. The words used in the clause, dealing with, (see above) are
intended to restrict the exemption. So ambulance staff called upon to provide medical treatment
to those injured in a riot will not be responsible for tackling the riot itself, and so will not be
exempted.69
In addition, police forces (and other public authorities carrying out policing functions) do not
owe a relevant duty of care in relation to deaths of members of the public when they result from
any other policing of law enforcement activity. The only exception to this is when the death is
the result of a breach of the organisations responsibility as an occupier of premises, and so on
(see Box: How wide is police immunity).
So where a member of the public dies as a result of the following ordinary law enforcement
activities, the police force cannot be prosecuted:

66

This is a point made by many people during the parliamentary debate including the Conservative and Liberal Democrat
spokespeople in Parliament. See House of Commons Committee 26 Oct 2006, columns 134 and 136
67
House of Commons Committee, 26 Oct 2006, column 125
68
House of Lords, 17 Jan, Grand Committee, column GC241
69
House of Commons Committee, 26 Oct 2006, column 125

46

- the provision of policing services to the community, involving for example, the security at
football grounds;70
- police car chases.
This would mean that if a situation similar to the Hillsborough disaster happened again, and a
police officer died, the police force could be prosecuted; but if a member of the public died, then
the police force could not be prosecuted.
The only kinds of deaths resulting from police activities that can result in a prosecution are those
involving:
- police officers (or those working for a public authority undertaking policing activities) when
they are not involved in operations dealing with terrorism etc;
- other people working for the police force/public authority or performing services as long as
they are not involved in such operations; and
- members of the public who die as a result of failures of the police force in its role as occupier
of land/premises when the incident does not relate to the undertaking of an operation.
- and, in three to five years time, members of the public (or police officers) at a police station
It should be noted that private security bodies do not have this exemption. The Government has
explained its position this way:
As a public body charged with public duties, the police are in a position quite unlike a
private security firm. The differences between the two types of bodies warrant a different
approach in relation to the offence. Unlike a private security firm, a police force cannot turn
down a request for protection and find itself entirely without responsibility. A private
security firm would not be held responsibility if it refused a job because of a lack of
resources and the client was subsequently attacked. Similarly, a private security firm should
turn down a job if it does not have the appropriate resources. Nor would one consider
taking legal action against a private firm for refusing the job, but the police provide
services to all members of the public and those whom the police have been unable to aid
may wish to take legal action.
The police do not have infinite resources . . Questions about how the police carry out
their activities will ultimately involve issues of public policy how to prioritise their
resources between different operational demands and how to balance the protection of
potential victims with risks to suspects, members of the public or others caught up in an
incident. We do not think that the best way to secure accountability for the way in which
the police organise and manage their activities is to subject them to the criminal offence set
out in the Bill.71

70

This is because of section 5(3) which states that the category of duty of care, relating to the supply by the organisation of good
and services section 2(1) (i) does not apply to policing functions.
71
House of Commons Committee, 26 Oct 2006, column 133

47

Deaths resulting from organisations carrying out emergency services

Section 6 of the Act states that certain


organisations do not owe a relevant duty of
care in relation to deaths of members of the
public which occur when they are responding
to emergency circumstances on land or at sea
(or when they are believed to be emergency
circumstances, 72 whether or not they actually
are). If the conduct of the organisation whilst
responding to the emergency results in a death
of an employee or someone else working for or
providing services to it, then prosecution is
possible. This is also the case where a person
has died through the organisations breach of
its duty as an occupier.

Organisations exempted in relation to


providing emergency response.

The organisations to which this exemption


refers are:
- fire and rescue authorities;
- any other organisation providing a service or
responding to an emergency service in
pursuance of arrangements with fire and
rescue authorities;
- a relevant NHS body which includes
hospital and ambulance trusts;
- an organisation providing ambulance
services or providing services for the
transport of organs, blood, equipment or
personnel at the request of an NHS
body/minister;
- an organisation providing a rescue service
(e.g. coastguard, RNLI);
- armed forces.

Emergency circumstances are defined as


circumstances that are present or imminent
and (a) are causing or likely to cause serious
harm or a worsening of such harm, or (b) are
likely to cause the death of a person. This could involve the activities of the ambulance service,
the fire brigade, or a sea and rescue body. It is not intended to extend to the hospital
environment, where expert help is at hand.73
Serious harm means (a) serious injury to or the serious illness (including mental illness) of a
person; (b) serious harm to the environment (including the life and health of plants and animals);
(c) serious harm to any building or other property).74
The
responding
to
an
emergency
circumstance does not include the way in
which medical treatment is carried out so
matters relating to the organisation and
management of medical services will remain
within the ambit of the offence, though the
exemption does include deaths resulting from
decisions as to the order in which persons are
to be given such treatment.75

This would mean that [hospital trusts] would


not face criminal prosecution in relation to their
management of response to an emergency the
number of medical personnel attending, the
time taken for ambulances to arrive or decisions
about patient prioritization by staff on the
ground. Trusts must balance finite resources
against competing demands when responding to
emergency circumstances. We do not believe
that it is right to impose criminal liability for
the consequences of those decisions.

Therefore, if there is an allegation that


organisations, whilst responding to emergency

(House of Commons Committee, 26 Oct 06, column 158)

72

Section 6(8)
House of Commons Committee, 26 Oct 2006, column 160. The reference to NHS trusts in effect relates to NHS ambulance
providers. Their private counterparts are also covered when they have an arrangement with an NHS Trust to carry out comparable
functions. It will not exempt private ambulance services when carrying out routine planned work. House of Lords, Grand
Committee, 17 Jan 07, column GC253.
74
Section 6(7)
75
Section 6(4)
73

48

circumstances, caused a death through providing the wrong medical treatment this could be
subject to a manslaughter charge. However, if it is alleged that the death was the result, for
example, of a decision to have treated someone in the wrong order, a prosecution could not take
place.
It should be noted that the exemption does not apply to activities that do not form part of the
response, such as maintaining vehicles or training staff. If a vehicle driven at speed to an
emergency crashed because its brakes had not been adequately maintained, it would not be
covered by the exemption.76
It is notable that the exemption does not include organisations providing an emergency service on
a commercial basis including, for example, private hospitals, or private companies offering
fire fighting services to the film industry unless they were standing in the shoes of a statutory
body (e.g. those that provide fire fire-fighting services at airports).77 The Government explained
this distinction by saying that organisations within the public and private sectors are different in
two key aspects. First, the private sector organisation can choose the terms and contractual
arrangements with a client and on that basis agree the service that it can supply. Undoubtedly that
will take into account the resources that the client is prepared to have standing at the ready.
Secondly and perhaps more importantly, a private organisation can call in the back-up of the fire
brigade if it is unable to cope with the demands of a given situation.78 In contrast a statutory fire
authority is under an obligation to provide a
fire and rescue service, regardless of the
When will the Child Protection exemption apply?
demand upon its services. At one time, The exemption is not intended to exclude from the
offence the services offered generally by local
there may be a fire at a chemical plant, a
multiple pile up on the motorway and a authorities to children and families. Once a decision
number
of
house
fires
burning has been taken to provide a service or to meet an
simultaneously. The demands of the fire assessed need for example, home help for the
authorities are unpredictable and extremely parent or a disabled child, or accommodation for a
child who is being looked after management failure
difficult prioritization decisions may need
in providing those services should be covered.
to be made to make best use of
Clearly, some decisions will be subject to the
resources.79
exemption for public policy decision such as decision
The exemption does not cover organisation
that are not in the business of providing
rescues but which may be called upon to
provide rescue at sea.80
Deaths resulting from Child Protection
and Probationary duties

Section 7 of the Act states that local


authorities do not owe a relevant duty of
care in relation to:

on the range and level of services to be provided.


Some services might be exclusively public functions
such as the review of plans for the future care of a
child who is being looked after. However, the
intention is that, subject to those limits, the offence
should apply generally apply to services provided to
children and families. Our intention is to focus on the
particular difficulties raised by child protection
responsibilities,
(House of Commons Committee, 26 Oct, column 168)

76

House of Commons Committee, 26 Oct 2006, column 144


House of Common Committee, 26 Oct 2006 column 145
78
House of Commons, Committee Stage, 26 Oct 2006, column 53
79
House of Lords, Grand Committee, 17 Jan 07, GC252.
80
Section 7(2)(h). See the House of Common Committee, 26 Oct 2006 column 146
77

49

the death of a child when it is a result


of a local authority carrying out its
care and supervision functions
pursuant to the different Children Acts
in the UK;81
death of a member of the public which
is the result of the local probation
board carrying out its supervision and
rehabilitating
responsibilities
(including
that
of
providing
accommodation or giving effect to
community orders) as set out in
various Acts.82
Both these exemptions relate to other
public authorities carrying these same
functions.
This prevents the prosecution of:
a local authority where, for example,
it failed to identify a child as being at
risk, with the result that the child was
not taken into care, and was
subsequently fatally injured;83
the death of a member of the public
by an offender who was under the
supervision of probation services.

What is the reason for the exemption relating to


probation?

The exemption for the Probation Service covers three


areas of activity: the monitoring of compliance with
community orders; the supervision of people released
from prison on licence; and the provision of
accommodation in approved premises. .. [T]he clause
extends no exemption to responsibilities owed to
employees or in respect of the occupation of premises.
It therefore only affects any wider duties owed in
respect of those in approved accommodation. In all
those areas, the Probation Service is managing very
challenging public relationships. The emphasis is on
protecting the public and the management of risk. As
with the other public services, this involves the difficult
balancing of many diverse interests. When the service
gets things wrong, there should be a thorough and open
investigation and the service should learn from those
mistakes. But we think that criminal prosecution is not
an appropriate way of achieving that highly proper and
laudable objective. High-profile cases have involved
offences, including murder, committed by offenders
under the supervision of probation services. By its
nature, the Probation Service deals with some very
high riskpotentially very dangerousoffenders. The
service has a responsibility to protect the public from
those offenders, but we do not think that it should itself
be criminally liable for their actions. That would place
a heavy onus on the Probation Service and potentially
distort the very difficult decisions that it must take. The
Probation Service is in any case unlikely to owe a duty
of care to the victim of an offenders action. To that
extent, as with the child protection exemption, an
important part of the provision is to give clarity to the
probation services, so that they are in no doubt about
where criminal liabilities lie.

If, however, in the course of these same


activities, there is a death of:
- an employee of the local authority or
probation board or other public
authority or of someone working for
or providing services to the
authority; or
- any person, as a result of failures on House of Lords, Grand Committee, 17 Jan 07, column GC263
the part of the local authority,
probation boards or public authority in itsHduties as an occupier of premises,
then prosecution is possible.

81

Parts 4 and 5 of the Children Act 1989; Part 2 of the Children Scotland Act 1995; Parts 5 and 6 of the Children (Northern
Ireland) Order 1995. Part 4 of the 1989 Act concerns care and supervision orders. Such orders can only be made by a court if it is
satisfied that the child concerned is suffering or is likely to suffer significant harm. The court must then place a child under the
care of supervision of a local authority. Part 5 of the Act deals with the powers of local authorities and the police to remove a
child in case of an emergency.
82
Chapter 1 of Part 1 of the Criminal Justice and Court Services Act 2000; Section 27 of the Social Work (Scotland) Act 1968;
Article 4 of the Probation Board (Northern Ireland) Order 1982.
83
It is unlikely that a duty of care would in fact arise in that situation in any case.

50

Statutory inspections

Section 3(3) states that public authorities do not owe a relevant duty of care in relation to a
death which occurs from inspections carried out in the exercise of a statutory function unless
the death is of:
- an employee of the public authority carrying out the inspections, or
- any person, as a result of failures on the part of the public authority in its role as an occupier of
premises.
For example, failures on the part of Health and Safety Executive (HSE) inspectors in not
identifying an obvious breach of health and safety law, that subsequently results in a death of an
employee of the company, cannot result in the prosecution of the HSE.
It is unlikely that such inspection bodies would in any case either owe a duty of care in such a
scenario or fall into one of the relevant duty categories so the principal function of this
exemption is to create certainty.

51

Exemptions: Reform History


The Law Commission report of 1996 applied the offence to all public bodies that were corporate
bodies, but not to any crown body (i.e. not to government departments or executive agencies under
government departments).
In relation to those bodies to which the offence did apply, it had no exemptions of any kind.
The Governments consultation report in 2005 applied the offence not just to corporate bodies but to all
employer organisations (including unincorporated bodies) but again did not apply it to crown bodies.
In relation to those offences to which the offence did apply, it had no exemptions of any kind.
The Governments draft bill in 2006 applied the offence to crown bodies but contained a number of
exemptions that not only applied to crown bodies but to other public bodies. These were those that
related to:
- public policy decision making
- exclusively public function
- military operations
These were criticised by the Parliamentary Scrutiny Committee in its Dec 2006 report. In relation to
exclusively public function, the Committee argued that it should either be removed or the definition
would need further work to ensure that there is clarity about the situations in which it would apply.
(para 213). Specifically in relation to deaths in prisons or police custody it did not believe that there
was any principled justification for excluding them from the ambit of the offence. (para 227) It
accepted that there should be an exemption to the offence for public policy decisions, but it should only
apply at a high level of public policy decision-making. And in relation to deaths from military
activities, it argued this exemption should be more tightly drawn (para 239).
In its response, the Government did not agree to remove the exclusively public function test but did
agreed to clarify what activities came within it. It agreed with the Committee that only high level
public policy decision making should be exempt. And in relation to military activities, it argued that as
currently drafted the exemption did not cover issues such as routine training or basic recruit
training, training to new roles or equipment, adventurous training or the normal testing or
evaluation of military equipment, which we intend should be covered by the Bill. (pages 21, 22)
When the Bill was introduced in Parliament it not only contained the exclusively public activity
function exemption, but a serious of other detailed exemptions which the Government argued were
already part of exclusively public function but were set out explicitly to provide certainty.

52

Relevant Duty of Care: Rule of Thumb


1. Deaths whilst undertaking work where the employing organisation is at fault
When the death involves a person undertaking work for an organisation - as an employee, self
employed person, sub-contractor, volunteer, and so on a relevant duty of care will exist. This
includes deaths of police officers, public authority personnel undertaking policing activities,
emergency service personnel, child-care workers and probation officers in the course of their
employment.
The only exceptions to this are where: (a) the death involved someone working for a public
authority and the death was the result of it making a public policy decision; (b) the worker
was a soldier involved in hazardous training or other operational activities; or (c) a police
officer died while involved in operations (including training and preparatory activities) dealing
with terrorism and violent disorder.
2. Deaths resulting from unsafe premises or land where the occupier is at fault
In deaths of this kind there will always be a relevant duty of care between the organisation and
the deceased. The only exception to this is where the occupier is a public authority and the
circumstances of the death involved it having made a public policy decision.
3. All other deaths of members of the public
Deaths of members of the public will not involve a relevant duty of care when they arise from
the conduct of:
- any public authority making a public policy decision; (see box, on public authorities, p.42)
- any organisation engaged in an activity that by its very nature can only be performed by a
state body (certain kinds of licensing, diplomacy etc);
- fire authorities, ambulance (and other NHS) trusts, the coastguard, Royal National Lifeboat
Institution and other emergency response organisations when responding to emergency
circumstances (unless the death resulted from the way medical treatment is carried out);
- the police during arrest, controlling crowds or whilst undertaking any other law and order
function;
- any public authority whilst undertaking any policing function;
- any public authority undertaking inspections as part of its statutory functions ;
- the Ministry of Defence when the death involves the armed forces in an operational activity;
- local authorities or other public authorities undertaking child protection functions;
- local probation boards whilst carrying out its supervision and rehabilitation responsibilities.
Deaths of members of the public which will involve a relevant duty of care:
- deaths of train passengers where the train operator is at fault;
- deaths of consumers where the manufacturer is at fault;
- deaths of children on a school trip where the Local Education Authority is at fault;
- deaths of hospital patients (including from MRSA) where the Hospital Trust is at fault;
- deaths arising from any construction activities (e.g. falling scaffold);
- deaths arising from failures on the part of consultants, architects etc.;
- deaths in a police or prison custodial institution (after three to five years when an order is
passed);
- deaths arising from the conduct of public authorities supplying to individuals a service (other
than those listed in exemptions above) where the public body is at fault;
- deaths during an emergency circumstance involving the provision of medical care.
See also chapter 2, page 15, point 7 for another way of summarising the position

53

Government arguments in favour of wide exemptions of public bodies


In 2005, with the publication of its draft Bill, the Government strongly argued in favour of wide
exemptions applying to public bodies. These exemptions were further concretized in the Bill
introduced into parliament and apart from conceding on deaths in police and prison custody, these
wide exemptions are contained in the new Act. Any death of a member of the public are exempted if
they result from:
- exclusively public functions;
- response of emergency services;
- law enforcement activities and hazardous training relating to terrorism etc;
- military operations and hazardous training relating to terrorism etc;
- regulatory inspections;
- child protection and probationary activities on the part of local authorities.
In addition, both deaths of members of the public and employees are exempted if they result from
public policy decision-making
The detailed meaning of these exemptions are set out in chapter 10 above
How did the Government justify these wide exemptions? The government arguments were
summarised in its response to the report of the joint parliamentary committee on human rights. It first
argued that such deaths involve matters such as the allocation of public resources, which are policy
matters and are arguably more appropriate for an elected Government to decide on than for criminal
courts. It then went onto say that:
The Government considered the wider forms of accountability to which bodies exercising
public functions are subject. These include accountability to Parliament, accountability under
the Human Rights Act 1998, accountability through public inquiries and the existence of
specific watchdog bodies such as the Independent Police Complaints Commission. In particular
deaths which might be caused by agents of the State must be the subject of a full and public
investigation.
In addition, the Government took into consideration whether the public interest would be well
served by imposing a resources burden on the Crown. Prosecutions are necessarily costly and it
appears to us that the objectives of the offence, in terms of deterrence and apportioning blame,
can be adequately met through other mechanisms in respect of bodies exercising public
functions. On balance it appears to be in the overall public interest for there to be a clear line
excluding exclusively public functions, and certain specifically exempted functions, to prevent
disruptive and costly criminal investigations being required.
The proportionality of the different treatment of public bodies is further demonstrated by the
fact that deaths caused by breaches of such bodies' employer and occupier duties are covered by
the Bill. The exclusions from the offence thus do not apply across the board but are targeted and
apply only to the extent that the Government considers strictly necessary. This limitation on the
exemption also recognises that as a matter of fact the other forms of accountability of public
bodies [i.e public inquiries etc] generally apply only to the public functions of the public sector
and not to its acts as employer or occupier. This reflects the Government's intention that
where the private and public sectors do the same things they are treated the same way under the
offence.
(Para 18, 19 and 20)

www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/277/27707.htm

54

Does the offence comply with human rights law?


The Joint Parliamentary Committee on Human Rights published a report in October 2006 arguing
that the limited application of the offence to public bodies and its failure to apply at all to
partnership and other unincorporated bodies was in breach of the Human Rights Act 1998. It stated
that:
The Committee notes that there is a clear obligation under Article 2 ECHR [European
Convention on Human Rights] to secure the right to life by putting in place effective criminal
law provisions to deter the commission of offences against the person, backed up by lawenforcement machinery for the prevention, suppression and sanctioning of breaches of such
provisions, and in certain circumstances this obligation requires the State to ensure that
recourse to the criminal law is possible against both private and public bodies in serious cases
of unintentional deaths.
The effect of these restrictions, exemptions and exclusions in the Bill is to preclude the
possibility of prosecution for corporate manslaughter in precisely those contexts in which the
positive obligation in Article 2 is at its strongest, and may require, in a particular case, that
criminal prosecutions be brought: the use of lethal force by the police or army; deaths in
custody; deaths of vulnerable children who should be in care, to name just a few examples. This
would mean, in situations where responsibility for the death lay with the public body for a
management failure, rather than any identifiable individual, recourse to the criminal law would
not be possible, which is likely to lead, in a sufficiently serious case, to the UK being found to
be in breach of its positive obligation under Article 2 ECHR to put in place an efficient and
effective system of judicial remedies including, in certain circumstances, recourse to the
criminal law.
It also noted that the various restrictions on the scope of the new offence, and exemptions and
exclusions from its applicability, are incompatible with the right not be discriminated in the
enjoyment of Convention rights under Article 14 ECHR in conjunction with the right to life in
Article 2 . In the Committee's view, Article 14 is engaged because the various restrictions,
exclusions and exemptions give rise to differential treatment of individuals in analogous situations
in relation to their access to the criminal law in respect of negligently caused death.
The Government, in its response, questioned the legal interpretation given by the Human Rights
Committee and stated: that in the absence of a European consensus a court would be slow to say
that Article 2 requires criminal sanctions to be imposed on legal persons, let alone on
unincorporated bodies or on every action of the state itself. In relation to the issue of
discrimination it stated, we believe those differences could be objectively and reasonably
justified, but that in any case, it did not think Article 14 would apply as any difference in
treatment between persons whose death is caused by an incorporated or unincorporated body, or
between persons whose death is caused by public or private bodies, would not be a difference based
on the personal characteristics of the deceased but rather a difference reflecting historical fact and
circumstances.
The Human Rights Committee rejected these arguments. Subsequently the Government, introduced
amendments to allow the offence to apply to deaths in custody (in 3 to 5 years) and to partnerships,
trade unions and employer organisations (as long as they were also employers).
See Committee report: www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/246/24602.htm
See Governments response: www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/277/27707.htm
See Committee reply: www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/34/3406.htm

55

CHAPTER 11
WAS THERE A FAILURE IN THE WAY IN WHICH
THE ORGANISATION WAS MANAGED OR ORGANISED?
Once it has been established by the judge that there is a relevant duty of care between the
organisation and the deceased, it is then necessary for the jury to consider:
- the adequacy of the way in which the organisation is managed or organised (this chapter);
- whether a substantial element of the management failure was at a senior management level; (see
Chapter 12);
- whether this amounted to a gross breach of the duty of care (see Chapter 13); and
- whether this breach caused the death (see Chapter 14).
The first part of this is consideration of the adequacy of
the way in which the organisation is managed or
organised. It is important to note that the Government
expects this test to allow for a scrutiny of how the
organisation managed the activity in question throughout
the whole organisation; it is not confined to looking only
at a specific level of management.84

The way the organisation


managed or organised

is

The Ministry of Justices guidance


refers to: management systems and
practices across the organisation, and
whether an adequate standard of care
was applied to the fatal activity. The
approach is not confined to a
particular level of management within
the organisation: the test considers
how an activity was managed within
the organisation as a whole (p.12)

The Government expects that the kinds of things that


will be considered in assessing the way in which the
organisation is managed/organised are:
- systems of work used by employees;
- their level of training and adequacy of equipment;
- issues of immediate supervision and middle management;
- questions about the organisations strategic approach to health and safety;
- the organisations arrangements for risk assessing, monitoring and auditing its activities.85

Consideration will not be given just to formal systems for managing an activity within an
organisation, but also to how in practice this was carried out. The adequacy of the
management of health and safety is absolutely at the heart of this offence. Although, the issue of
causation comes up later, the best way to think about this is to ask these kinds of questions:
- were there any management failings that caused or created the circumstances for the death to
take place?
- was the training, supervision, instruction, provision of equipment and other relevant
information, handling of risks assessments etc adequate and if not were they part of the cause
of the death?
- did managers fail to do something that you would have expected them to have done?
- were managers aware of risks to which they failed to respond?
- was there a breach of health and safety law that resulted in the death, and was based upon
management failing to do something that they should have done?
84
85

See Explanatory Memorandum, para 15


Ministry of Justice Guidance, p. 12

56

CHAPTER 12
WAS A SUBSTANTIAL ELEMENT OF THE FAILURE
AT A SENIOR MANAGEMENT LEVEL?
Having identified that there is a management failure linked to the death, it is then necessary to
show that a substantial element of that failure was at a senior management level. Section 1(3)
states specifically that:
An organisation is guilty of an offence under this section only if the way in which its
activities are managed or organised by its senior management is a substantial element in the
breach referred to in subsection (1).
This has become known as the senior manager test. It raises a number of questions:
What is meant by an organisations senior management?

Section 1(4)(c) states that senior management comprises:


the persons who play significant roles in
(i) the making of decisions about how the whole or a substantial part of its activities are to
be managed or organised, or
(ii) the actual managing or organising of the whole or a substantial part of those activities.
Sub-section (i) refers to senior decision
makers (i.e. HQ functions), while subsection (ii) refers to senior operational
managers. These managers will only be
deemed to be part of senior management if
they play a significant role in either making
decisions about, or in the actual
management of, at least a substantial part
of the organisations activities. The
definition is intended to cover both those
in the direct chain of management as well
as those in, for example, strategic or
regulatory compliance roles.86 The
Ministry of Justice guidance says that,
apart from directors and similar senior
management positions, roles likely to be
under consideration include regional
managers in national organisations and the
managers
of
different
operational
87
divisions.
86
87

What is Senior Management?

The Ministry of Justice Guidance states that:


These are the people who make significant
decisions about the organisation, or
substantial parts of it. This includes both
those carrying out headquarters functions (for
example, central financial or strategic roles or
with central responsibility for, for example,
health and safety) as well as those in senior
operational management roles.
Exactly who is a member of an organisations
senior management will depend on the nature
and scale of an organisations activities. Apart
from directors and similar senior management
positions, roles likely to be under
consideration include regional managers in
national organisations and the managers of
different operational divisions.
(see p. 13)

Explanatory Memorandum, para 17


p.13

57

The words significant and substantial are


not defined in the Act. In Parliament, the
Government said that:
By significant role we mean one that
influences the way in which decisions are
taken and management is conduct,
and that
By substantial part of an organisation,
I mean a large part. What that will mean
to any particular organisation will depend
on its size and nature.
This definition of substantial is different
from the definition usually given to that
word, which is more than trivial. The
Minister made that clear when he said: It is
clear that in clause 1 that substantial will
mean large, noteworthy and so on, rather
than just more than minimal.88

How does the new test differ from the


identification doctrine?

The Governments reforms were premised on the


basis that it would create a new offence that was
different from the identification doctrine. With the
need to involve consideration of senior
management some have argued that little has
changed. What is the difference?
Under the old law the only way a company could
be prosecuted was by prosecuting a specific
director or senior manager for the offence of
manslaughter (see Box: Identification Doctrine,
p. 9). It was necessary to prove all the ingredients
of the offence against that person; duty of care,
gross failure, causation. The new test is very
different. In effect there are three steps. First it is
necessary to show that there has been a
management failure somewhere in the
organisation. Secondly, you have to show that this
management failure was a cause of the death.
Neither of these first two steps involve senior
management at all. Thirdly, it is necessary to show
that a substantial element of this management
failure was at a senior management level. It is not
necessary to show that this failure at a senior
management level was grossly negligent, or that
the failure at a senior management levels was that
of a particular senior manager. As such therefore,
this new test is very different from the
identification doctrine.

Whether or not a manager fits into this


definition will depend on the facts of each
case and will be for the jury to decide. A
key issue will be the size of the organisation.
The court might consider a regional
manager or a factory manager to be part
of senior management where there are only three other regional or factory managers, but not if
there are nine others.
What needs to be shown about senior managements contribution to the failure?

This remains somewhat obscure. It could mean, for example, that a significant element of the
organisations failure must be a failure of one or more senior managers. However, in Parliament
the Minister said that it would not be necessary for the
prosecution to identify individual senior managers and prove their failures. In many cases
that may be an important part of the evidence and the prosecutions case. Where the
evidence shows that senior management as a group failed to put in place systems and to
ensure that they were adhered to, there will be no need to show that each individual senior
manager failed to have a safe system in place. The prosecution will need to show only that
there was no safe system where there should have been one. The ability to look generally at
senior management is reinforced by moving from references to senior managers to
references to senior management.
88

House of Commons Committee, 19 October 2006, paras 21 and 22.

58

And the Ministry of Justices guidance suggests that:


The Act does not require the prosecution to prove specific failings on the part of
individual senior managers. It will be sufficient for a jury to consider that the senior
management of the organisation collectively were not taking adequate care, and this was
a substantial part of the organisations failure.89
The Government seems to be suggesting that what needs to be shown is that a substantial element
of the organisational failure was a failure that was or should have been the responsibility of those
at a senior management level.
Is it a substantial element in the breach or in the gross breach?

It is not entirely clear whether senior management failure must amount to a substantial element
simply in the breach of a duty of care by the organisation, or in the gross breach of duty. This
will make quite a difference since it will be harder to show that senior management played a
part in the gross breach.
The relevant section mentions the breach referred to in subsection (1), not the gross breach,
and the language of both the Explanatory Memorandum and the Ministry of Justices Guidance
refers always to the organisations breach or failure, not to gross breach or gross failure.90
It would therefore appear that there needs only to be a substantial element in the breach of duty.
Issue of Delegation

To what extent can senior managers of an organisation delegate responsibilities down the chain
of command so that a substantial element of any failure can never be identified at the senior
management level? In the Lords, Lord Bassam of Brighton, for the Government, stated that:
We need to distinguish between the delegation and the abdication of responsibility. What
is not acceptable is the abdication of responsibility for health and safetyI think that we
are all agreed on that. I fully support the sentiment behind the amendments aimed at
ensuring that organisations are not able to abdicate health and safety responsibilities to
avoid liability for this new offence. We would be very concerned if the Bill made that a
possibility, or, worseas has been suggestedactively encouraged some organisations to
delegate inappropriately.
The Government recognise the importance of health and safety being led from the top of
organisations. . At the same time, they do not want organisations to believe that no
management of health and safety can be delegated. Appropriate delegation and appropriate
supervision of such delegation is part of the proper management of health and safety.
However, inappropriate delegation of health and safety responsibilities will not be a
legitimate defence to a charge of gross negligence. The courts will be able to consider how
89

P.14
The Guidance says: However it will not be possible to convict an organisation unless a substantial part of the organisations
failure lay at a senior management level (p.12), and the Explanatory Memorandum states that, unless a substantial element of
the breach lies in the way the senior management of the organisation managed or organised its activities. (para 15)
90

59

the activity was managed at senior level, and if the answer is that those at senior level
failed to manage health and safety appropriately in respect of the activity, that will be
potent evidence of failures at that level.
There may be organisations that bury their head in the sand and erroneously believe that
the way to avoid the offence is simply to delegate responsibility out of the boardroom
entirely. But those organisations are taking the gamble to abdicate responsibility and risk
liability versus having the certainty of avoiding liability through managing health and
safety properly at a senior level.
We believe that this also supports the Governments position that health and safety should
be led from the top. Only those organisations in which senior management are taking
health and safety seriously can be sure of avoiding liability for this offence. We believe
that it is right that, if such people have been managing the organisation well, the
organisation as a whole should not be guilty under the new offence. That should be true
regardless of the size or structure of the organisation.91
The Ministry of Justices guidance supports this position when it states that Failures by senior
managers to manage health and safety adequately, including through inappropriate delegation of
health and safety matters, will therefore leave organisations vulnerable to corporate manslaughter
or corporate homicide charges.92

91
92

House of Lords, Grand Committee, 11 Jan 2007, columns GC134, 135


p.14

60

CHAPTER 13
WAS THERE A GROSS BREACH?
If a management or organisation failure has been identified and a substantial element of that
breach was at a senior management level - it then needs to be shown to have been a gross
breach of the duty of care. The Act states that:
A breach of a duty of care by an organisation is a gross breach if the conduct alleged to
amount to a breach of that duty falls far below what can reasonably be expected of the
organisation in the circumstances.93 (emphasis added)
Sections 8(2) and 8(3) of the Act provide the jury with criteria that it should take into account in
determining whether or not this test is satisfied. This in particular requires the jury to focus on the
organisations compliance with health and safety law. The criteria are divided into those that the
jury must consider and those that it may consider. The jury must consider:
- whether the organisation had failed to comply with any health and safety legislation;
- how serious was this failure; and
- how much of a risk of death did this failure pose.
In the draft Bill, the jury had to consider risk of serious injury but this would have been
inconsistent with the law relating to the individual offence of manslaughter.94 However, the
Government has suggested that the jury can take the risk or serious injury into account (see
below).
Health and Safety Legislation includes any statutory provision dealing with health and safety
matters95 not just conventional health and safety law contained in the Health and Safety at
Work Act 1974 and the Northern Irish equivalent enforced by the Health and Safety Executive
and local authorities. It also includes, for example, those provisions in other regulatory law (like
the Consumer Protection Act, and the Environment Acts) enforced by other regulatory bodies.
The Jury may also consider:
- the extent to which the evidence shows that Health and Safety Guidance
there were attitudes, policies, systems or Health and safety guidance means any
accepted practices within the organisation that
code, guidance, manual or similar publication
were likely to have encouraged any such health that is concerned with health and safety
and safety law failure or to have produced matters and is made or issued (under a
tolerance of it which, in effect, constitute the statutory provision or otherwise) by an
authority responsible for the enforcement of
culture of the organisation; and
- any health and safety guidance that relates to the any health and safety legislation. (Section 8(5))
alleged
breach.96
The
Explanatory
Memorandum states that Guidance does not provide an authoritative statement of required
93

Section 1(4)(b). The wording far below what can reasonably expected is the same as that used in the offence of Death by
Dangerous Driving.
94
See the House of Commons Committee, 26 Jul 2006, column 172.
95
Section 25
96
Section 8(3)

61

standards and therefore the jury is not required to consider the extent to which this is not
complied with. However, where breaches of relevant health and safety duties are established
guidance may assist a jury is considering how serious this was.97 Therefore compliance by
directors with the new guidance on directors responsibilities can be taken into account by the
jury.
The Act specifically states that these are not exhaustive issues for the jury to consider and it can
also have regard to any other matters they consider relevant.98 The Government has said that,
for example, the degree to which the activities in question posed a risk of serious injury.99
Gross Breach: Reform History
In the offence proposed in the 1996 Law Commission report and the 2000 Consultation document, it
was necessary to show that the management failure constituted conduct falling far below what can
reasonably be expected in the circumstances. The test in the Governments 2005 draft Bill and in
the final Act in relation to proving that there had been a gross breach of duty of care was exactly the
same.
What did change, however, in 2005, was that the Government proposed to give guidance to the jury to
assist them in deciding whether or not this test had been met. The draft bill stated:
In deciding that question the jury must consider whether the evidence shows that the organisation
failed to comply with any relevant health and safety legislation or guidance, and if so(a) how serious was the failure to comply;
(b) whether or not senior manager of the organisation
(i) knew of ought to have know that the organisation was failing to comply with that legislation
or guidance;
(ii) were aware or ought to have been aware of the risk of death or serious harm posed by the
failure to comply;
(iii) sought to cause the organisation to profit from that failure.
Although the Parliamentary Scrutiny Committee was broadly supportive of the legislation containing
factors of this nature, they were critical of the precise wording used. It recommended that juries
should not be required to consider a factor which makes reference to senior managers in an
organisation and the factor relating to whether senior managers sought to cause the organisation to
profit or benefit from the failure should be deleted (paras. 191 and 194).
In its response to the committee, the government accepted these two recommendations (p.17) and
both of these factors were omitted when the Government introduced the Bill to Parliament in 2006,
Interestingly, an amendment was tabled in the House of Lords to try and bring back motive as a
factor. The government responded to this by saying: We are not convinced that a motive, for
example, to save money is relevant to whether there had been a breach of a duty of care. An
organisation may, through utter disregard, fail to consider what actions need to be taken for an activity
to be carried out safely. . [Th]e public sector would rarely be motivated by profits. Conversely, it
could be said that commercial organisations are only motivated by profit. (House of Lords, Grand
Committee, 17 Jan YEAR???, column GC274)

97

Para 38
Section 8(4)
99
Minutes of the House of Commons Committee meeting, 26 Oct 2006, column 173.
98

62

CHAPTER 14
WAS THE FAILURE A CAUSE OF THE DEATH?
Section 1(1) of the Act states that an organisation is guilty of an offence if the way in which its
activities are managed or organised causes a persons death.
The usual principles of causation in the criminal law will apply to determine whether or not this
is the case. Therefore it is not necessary to show that the management failure was the sole cause
of death; there can be a number of different causes of death. The key thing is that but for the
particular failure in question there would have been no death.
The Ministry of Justice guidance states that the prosecution will need to show that but for the
management failure (including the substantial element attributable to senior management) the
death would not have occurred.
It is not clear, however, that the Ministry of Justice is correct in saying that the but for test
includes the substantial element attributable to senior management. Section 1(1) above does not
indicate this, and the section 1(3) on the need for senior management involvement in the failure
does not suggest a linkage with causation.
Causation: reform History

The Law Commissions 1996 proposals contained a special provision relating to causation. This
stated that a management failure by a corporation may be regarded as a cause of a persons death
notwithstanding that the immediate cause is the act or omission of an individual. The Law
Commission believed that such express provision was necessary in order to make it clear that the
ordinary principles of causation for homicide were applicable to the corporate offence. Accordingly,
a jury could find that a corporations management failure was the cause of death despite an
intervention by an individual, for example the deliberate failure of an unsupervised frontline
operator.
In 2000, the Government supported the Law Commission on this point though it did not provide
any further explanation. In 2005, however, the clause was no longer in the draft bill. The
Government explained that the reason for this was that that case law (namely the case of
Environmental Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22.) has developed since
the Law Commission reported in 1996 so that the current position on causation means that an
intervening act will only break the chain of causation if it is extraordinary and we do not consider
that corporate liability should arise where an individual has intervened in the chain of events in an
extraordinary fashion causing the death, or the death was otherwise immediately caused by an
extraordinary and unforeseeable event.
The Parliamentary Scrutiny Committee thought that although it was the case that the law had
changed, it might change back again and it would be preferable to make it clear on the face of the
statute that an intervening act or failure of a worker would not prevent an organisation being
convicted. However, the government was not persuaded, and in its response stated that : Overall,
we are confident that in light of Empress Car the courts will adopt a sensible approach to causation
in the context of corporate manslaughter.

63

PART 3
INVESTIGATION, PROSECUTION AND SENTENCING

This part of the report looks at how the offence will be investigated prosecuted and
sentenced.
Chapter 15: Investigation
Chapter 16: Prosecution
Chapter 17: Sentencing

64

CHAPTER 15
INVESTIGATION
The offence will be investigated by the police, with the assistance of the relevant regulatory body
providing specialist advice on the relevant health and safety issues. This could be the Health and
Safety Executive, a Local Authority, the Food Standards Agency, the Environment Agency etc.
In relation to work-related deaths those involving potential breaches of the health and safety
at Work Act 1974 there already exist three separate protocols (one for England and Wales,
another for Northern Ireland, and another for Scotland) which set out how these deaths will be
investigated (and in particular the relationship between the police and the Health and Safety
Executive and Local Authorities).
The Protocols

The English/Welsh protocol is a document agreed upon by the Health and Safety Executive, most
Local Authorities and all 43 police forces in England and Wale, the British Transport Police and
the Crown Prosecution Service.100 The protocol does not formally apply to the Civil Aviation
Authority and the Maritime Coastguard Agency but both of these agencies have agreed to abide
by the protocols principles;
It concerns "the effective liaison between the parties" involved in the investigation and
prosecution of work-related deaths in England and Wales. It applies when there is a work-related
death which is defined as a fatality resulting from an incident arising out of or in connection
with work. It has the following statement of intent: In the early stages of an investigation,
whether any serious criminal offence has been committed is not always apparent. The parties to
the protocol are committed to ensuring that any investigation into a work-related death is
thorough and appropriate', and agree to work closely together in order to achieve this. Decisions
in relation to who will lead the investigation, and the direction it will take, should be timely,
informed by the best available evidence and technical expertise, and should take account of the
wider public interest. Should there be any issue as to who is to be involved in investigating any
work-related death, then the parties will work together to reach a conclusion.
The protocol states that police officer who attends the scene of the death should immediately
inform a "senior supervisory officer" about the incident who should then: "attend the scene and
any other relevant place to assess the situation, review actions taken to date and assume
responsibility for the investigation." The police will take primacy of the investigation, when: "the
investigation gives rise to a suspicion that a serious criminal offence (other than a health and
safety offence) may have caused the death". The regulatory body will take primacy when "it
becomes apparent during the investigation that there is insufficient evidence that a serious
criminal offence cause d the death".
The Scottish protocol which is signed by the police, the HSE, the Crown Office and Procurator
Fiscal service - is based upon very similar principles with its only significant variation reflecting
100

To read about the England/Wales Protocol: www.corporateaccountability.org/manslaughter/investigation/main.htm

65

the much more active role that the Procurator Fiscal Service has (compared to the CPS) in
directing investigations.101 So the Scottish protocol states: The police officer of supervisory
rank should, when they have assessed the situation and reviewed actions taken, contact the
Procurator Fiscal, or if out of hours, the duty Procurator Fiscal, and appraise them of the full
circumstances of the death. They should comply with any instructions issued by the Procurator
Fiscal who may decide to attend the scene of the death and/or to instruct a pathologist to attend.
Other specialists should attend the locus in accordance with local arrangements for the
investigation of a serious crime to ensure a complete and thorough investigation.
These protocols are very focused on clear work-related deaths where the Health and Safety
Executive and local authorities are the regulatory bodies. It would seem that they would have to
be revised in order to deal with a much wider category of deaths that are potentially covered by
the new legislation. The Ministry of Justice guidance does not indicate that there is necessarily
going to be revisions to these protocols however.

101

The Scottish protocol can be obtained here: http://www.hse.gov.uk/scotland/workreldeaths.pdf

66

Investigation: reform history


The Law Commission did not comment on how the offence should be investigated. However, in
2000, the Home Offices consultation document stated that the Government considered that there
was a good case in England and Wales for the health and safety enforcing authorities and
possibly other enforcement agencies, as appropriate, to investigate and prosecute the new offence
of corporate manslaughter. It argued that where there was evidence that individuals had
committed an offence, it would refer the cases to the police (para 3.3.5). This was subject to
significant criticism and in 2005, the new consultation document said that Government clearly
recognises the importance of police investigation in signaling the position of the new offence as a
serious offence under the general criminal aw, rather than an offence that might be characterised
as regulatory. It also argued that health and safety enforcing authorities such as the HSE must
play an important role in provide advice and assistance to the police in investigating the offence.
The Scrutiny Committee set out arguments made by the Association of Chief Police Officers to
increase the investigatory powers of the police:
The new offence of corporate manslaughter will be listed as a serious arrestable offence
under the Police and Criminal Evidence Act 1984 (PACE) and therefore police powers of
investigation will be subject to that Act. Schedule 1 of PACE permits a circuit judge, on the
application of a constable to authorise the police to enter premises and seize material where
there is high level of urgency and where delay would have a deleterious impact on the
investigation. The Association of Chief Police Officers (ACPO) submitted evidence to the
inquiry that the current arrangements under PACE were insufficient for corporate
manslaughter investigations:
Access to this material may only be secured under an order granted by a judge
(Schedule 1 PACE), rather than under warrant issued by a Justice of the Peace. This
creates particular problems in obtaining an appropriate authority to access the business
records of a company that is the subject of an investigation. By the time arrangements
have been made to apply for such an order, and a hearing scheduled in front of a judge,
the passage of time may have had a detrimental affect on the investigation.
Under section 20 of the Health and Safety at Work etc. Act 1974, health and safety
inspectors are provided with a number of powers for the purpose of carrying into effect
enforcement responsibilities. These powers include powers of entry to premises,
examination and investigation. Unlike the search and entry powers available for the police
under PACE, Health and Safety Executive inspectors do not need to apply to a court for a
warrant of authorisation. ACPO suggested that delays could be minimised by allowing a
senior police officer to authorise warrants for entry and search rather than a circuit judge.
ACPO also requested additional powers to compel individuals to give evidence. They
pointed out that individuals could not be cautioned as they were not liable to the offence
and argued that witnesses against their own organisation were likely to be unwilling to help
the police. They stressed that the Serious Fraud Office and the Health and Safety Executive
have powers to compel people to give evidence. In addition they asked for powers to bring
non-police expert support with them when necessary when entering business premises. (p.
328-330)
The Committee concluded that it had yet to be convinced that the police require additional powers
to investigate corporate manslaughter (para 344), and the Government agreed with this position,
though it said that it would keep the issue under review.

67

CHAPTER 16
PROSECUTION
The following points should be made about prosecution:
- The prosecution will be taken by the Crown Prosecution Service (in England and Wales), and
by the Procurator Fiscal Service (in Scotland). All elements of the offence need to be proved
beyond reasonable doubt
- In England, Wales and Northern Ireland, no private prosecution can be instituted without the
consent of the relevant Director of Public Prosecutions.102 With consent, a private prosecution
can take place in these three countries; in Scotland, however, a private prosecution for this
offence is completely prohibited (see Box: Private Prosecution: Reform History, p. 68).
- Criminal proceedings will take place in the Crown Court (in England, Wales and Northern
Ireland) and in the High Court of Justiciary (in Scotland).
- There are special provisions that ensure the prosecution of a company for the offence of
manslaughter does not create further difficulties for the prosecution of a a director or senior
manager of that company for an offence under section 37 of the Health and Safety at Work
Act 1974 (HASAWA 1974).
In order to prosecute under section 37 of the HASAWA 1974 it is necessary that (a) a health
and safety offence has been committed by a company and it has to be a company; and (b)
there must be evidence that the corporate offence was the result of consent, connivance or
neglect on the part of a director or senior manager.
Section 19(1) of the Act allows an organisation to be prosecuted in the same proceedings for
both an offence of corporate manslaughter and a health and safety offence, and juries to be
invited to return a verdict on each charge103 if the interests of justice so require.
This is helpful because it means that at a trial, a company can be prosecuted for both corporate
manslaughter and a health and safety offence. If the jury convict the company for
manslaughter, the jury can also be asked to return a verdict for the health and safety offence as
well. With this health and safety conviction, a director or manager can then be prosecuted
under section 37 HASAWA 1974.
Section 19(2) also allows an organisation that has been convicted of corporate manslaughter to
be charged subsequently with a health and safety offence arising from the same set of
circumstances. 104 This allows the director, along with the company, to be prosecuted for a
health and safety offence subsequent to the prosecution of the company for corporate

102

Section 17
Section 19(1)
104
Section 19(2)
103

68

manslaughter. Usually this would not be allowed to happen because the rule of double
jeopardy does not allow a defendant to be prosecuted twice over a similar set of facts.105
- Existing statutory provision concerning the procedure of prosecuting a corporation will apply
when any of the unincorporated bodies to which this offence applies (see Chapter 2, and annex
2).106
- It should be noted that more than one organisation can be prosecuted in relation to any
particular death as long as they all owed a relevant duty of care and otherwise met the legal
tests.107
Private Prosecutions: Reform Process
The Law Commission stated in its 1996 report that: [T]he right of a private individual to bring
criminal proceedings, subject to the usual controls, is in our view an important one which should not
be lightly set aside. Indeed in a sense it is precisely the kind of case with which we are here
concerned, where the public pressure for a prosecution is likely to be at its greatest, that that right is
most important: it is in the most serious cases such as homicide, that a decision not to prosecute is
most likely to be challenged. It would in our view be perverse to remove the right to bring a private
prosecution in the very case where it is most likely to be invoked.
In 2000, the Home Office agreed with the Law Commission, without providing any reasons. (Para
3.7.6)
In 2005, however, the Government changed its position. It said that there was significant concern
amongst those who responded to the Home Office 2000 consultation document that this would lead
to insufficiently well founded prosecutions, which would ultimately fail and would place an unfair
burden on the organisation involved with possible irreparable and personal harm. The Government
recognises these concerns. (para 60)
The Parliamentary Scrutiny Committee, however, stated that: We consider that the interests of
justice would be best served by removing the requirement to obtain consent. We are persuaded that
this recommendation would not lead to spurious and unfounded prosecutions, as there exist a number
of other obstacles to bringing a private prosecution for corporate manslaughter. (Para 340)
The Government, however, did not change its position. In its response to the Parliamentary
Committee, it argued that any decision by the DPP not to provide its consent could be subject to
judicial review, and it rejected the position that the DPP might have a conflict of interests when
considering whether to prosecute crown bodies or not (page 32).
In the House of Lords, the Government made the point that in effect the DPPs consent would solely
depend on whether there was sufficient evidence. It is in no ones interests to see cases go to court
where there is no realistic prospect of conviction under the new framework. It also argued that the
label of manslaughter is and should be taken very seriously; [W]e do not want companies that
manage health and safety well, but which tragically have a fatal accident, to have their reputations
damaged through unfair charges. It also argued that the requirement of the DPPs consent did not
105
Prosecution
bodiesprosecutions,
often do not likebut
to give
an option
between
two offences
as they
are more
likely to choose
the07,
lesser
prevent
private
onlyjuries
created
a filter.
(House
of Lords,
Grand
Committee,
18 Jan
offence. This provision will ensure that a company can be first prosecuted for corporate manslaughter, and then subsequently the
column
295)for section 37 of the Health and Safety at work Act 1974.
director
can GC293,
be prosecuted
106
107

Section 15. This also relates to sentencing.


House of Lords, Grand Committee, 11 Jan 2007, col GC155

69

CHAPTER 17
SENTENCING
On conviction, the court has the power to impose three different kinds of sentences upon the
convicted organisation: a fine, a publicity order, and a remedy order. The Government has asked
the Sentencing Guidelines Council to publish guidance for the court on sentencing convicted
organisations for this offence. In November 2007, the Sentencing Advisory Panel (SAP)
published a consultation document and final guidelines are expected to be published in Autumn
2008.108
Fines

Section 1(6) of the Act states that an organisation that is guilty of corporate manslaughter or
corporate homicide is liable on conviction on indictment to a fine. All convictions for these
offences are on indictment so this applies to all convictions.
The Act provides no further details about the kinds of fines
that should be imposed. In its consultation document, the
SAP proposed that the court should impose a fine of
between 2.5% and 10% of the organisations turnover. The
court should first take the baseline figure of 5% of the
organisations turnover and then, depending on the existence
and extent of various mitigating or extenuating
circumstances, increase the fine up to 10% of the turnover
or reduce it down to 2.5%.109 It proposed that the court can
then consider any mitigation related to the offender (rather

We cannot imprison a
company, so it is vital that the
penalties for the new offence
properly punish the convicted
organisation and sufficiently
deter them from future
offending
(Minister, House of Commons
Committee, 24 Oct 2006, column 70).

than the offence), which may take the fine below the range.

The SAP proposed the following aggravating factors:


- more than one person killed as a result of the offence;
- serious injury caused to one of more others, in addition to the death(s);
- failure to act upon advice, cautions or warning from regulatory authorities;
- failure to heed relevant concerns of employees or others;
- offender carrying out operations without an appropriate licence;
- action or lack of action prompted by financial or other inappropriate motives;
- corporate culture encouraging or producing tolerance of breach of duty.
And it proposed the following mitigating factors:
- breach due to employee acting outside authority or failing in duties;
- ready cooperation with authorities;
- good previous safety record.
The SAP proposed that the courts in reaching the appropriate level of fine should keep in mind
that:
108
109

Ministry of Justice Guidance. P.15


Para 60. To see the SAP document: www.corporateaccountability.org/dl/manslaughter/reform/2006/sentencingpaneldraft.pdf

70

a) the fine should be sufficient to have the required impact, in most cases without imperiling
either the existence of the organisation or the funds necessary to remedy defective systems;
and
b) where the offender is funded from the public purse, the fine will be paid with public
money.
However, in relation to fining public bodies, the SAP stated: The objectives of the fine to
reflect public concern at the harm caused by the offence and to deter the offender from breaching
its duties in the future, are just as important whether fining a public body or a private company.
The SAP stated that it did not think that the court should take account of the effects of imposing a
publicity order (see below) when considering the level of fine.110
Publicity Orders

Section 10 (1) of the Act gives the court the power to make a publicity order. This would
require the organisation
to publicise in a specified manner (a) the fact that it has been convicted of the offence;
(b) specified particulars of the offence
(c) the amount of any fine imposed;
(d) the terms of any remedial order made.

Application Date of Publicity


Orders

Courts have not been given powers


to use these publicity orders
immediately and will only be able
to do once the Sentencing Guidelines
Council have finalised its guidelines.

The order must set out a period of time within which the
requirements of the order must be complied.111
Before the court proposes to make the order it is required
to find out the views of any enforcement agency it
considers appropriate.112 As part of the order, the court
can require the organisation to supply the enforcement
agency within a specified time evidence that the
requirements of the order have been complied with.113
Before imposing the order, the court must also have
regard to any representations made by the prosecution or
by the organisation.114

Which enforcement agency?

This will be the regulatory body


responsible for regulating the
activity which caused the death. It
could be the Health and Safety
Executive, Local Authority, Food
Standards Agency, Office of Rail
Regulation, or the Environment
Agency etc.

A failure to comply with the order is an offence that can result in an unlimited fine.115
The SAP proposed that the court should impose a publicity order, along with a fine, following
every conviction. It stated that options for the form of the order include:
110

Para 83
Section 10(3)(a)
112
Section 10(2)(a)
113
Section 10(3)(b)
114
Section 10(2)(b)
115
Section 10(4)
111

71

- publication on television/radio and/or in a


local/ national/ trade newspaper, including
relevant broadcaster/newspaper websites;
- publication on the organisations website and
in its annual report, informing (potential)
customers and those who might be interested in
investing in the organisation;
- notice to shareholders; and
- letters to customers and/or suppliers of the
organisation.116
It also stated that:

Why publicity orders?

In the House of Lords, the Government gave


the following reasons why it thought
publicity orders were appropriate:
It is certainly true that reputation is an
important asset to many businessesmany
businesses trade on reputation after all. In his
recent review of regulatory penalties,
Professor Macrory cited evidence which
suggests that damage to an organisations
reputation can have consequences for
consumer confidence, market share and
equity value. Public censure is therefore a
sanction that organisations are likely to take
very seriously. Interestingly, adverse
publicity orders are already successfully used
in other jurisdictions. The Macrory review
advocated that they should be developed for
use in the UK courts.

"if the offender is a local organisation, it might


normally be appropriate to require publication
in the local media; in the case of a large
national organisation, publication in national
media would be more effective. In both cases,
(House of Lords, Grand Committee, 11 Jan 07,
a notice in all relevant trade journals should be column GC 162)
required. Any shareholders should be notified
in order that they may press for enhanced health and safety standards and publication
should always be required in an annual report."117

Remedial Orders
Section 9 of the Act gives the court the power to impose a remedial order requiring the
organisation to take specified steps to remedy:
(a) the breach mentioned in section 1(1) [of
the Act] (the relevant breach)
(b) any matter that appears to the court to
have resulted from the relevant breach
and to have been a cause of the death
(c) any deficiency, as regards health and
safety matters, in the organisations
policies, systems or practices of which
the relevant breach appears to the court
to be an indication.118

Comparisons with similar court powers

The remedial order in the Act is based on a


similar power set out in section 42 of the
Health and Safety At Work Act 1974. This
allows a court to order any person convicted of
a health and safety offence to remedy anything
which is in respect of any matters which
appear to the court to be matters which it is in
[the defendants] power to remedy. This is
potentially a very wide power indeed and
wider than the power under the 2007 Act.

Such an order can only be made if:


- the prosecution makes an application specifying the terms of such an order;119
116

Para 81
Para 82
118
The Minister told the Commons Committee that if the convicted company failed to put in place adequate systems for
monitoring the safety of its activities, and the consequence of that was dangerous practice on the shop floor, the court could be
empowered to order changes both to the systems and the to the practices that led to the fatality (House of Commons Committee,
26 Oct 2006, column 176)
119
Section 9(2)
117

72

- the court has had regard to any representation or evidence of the convicted organisation and
the prosecution; or
- the prosecution has consulted with any appropriate enforcement agency.120
The order must specify the period of time
in which the steps set out in the remedial
order are to be taken, and may require the
organisation to supply to an enforcement
authority evidence that those steps have
in fact been taken.121 A failure to comply
with an order is a criminal offence which
can result in an unlimited fine. 122
The Ministry of Justices guidelines state
that it expects courts to impose a
remedial order in relatively rare
circumstances since the relevant regulator
would have been involved in the case
from the outset and will have been able to
use their existing enforcement powers to
address any dangerous practices long
before a case comes to court.
The SAP says that the remedial order will
provide an additional safeguarding power
for a limited number of cases where the
offender has failed to respond to other
interventions. With regard to what effect
the imposition of the remedial order will
have on the overall sentence that should be
imposed, the SAP stated that:

the costs involved in complying with


the remedial order should not lead to a
corresponding decrease in any fine
imposed for the same offence. The
order is rehabilitative rather than
punitive and merely requires the
offender to take steps to comply with
the health and safety standards already
required by law.

The purpose and extent of Remedial Orders

Remedial orders are not just about taking action to


remedy the immediate and localised causes of a
fatality, and the purpose of the provision that the noble
Lords amendment seeks to remove is to make clear
how much they can address. Remedial orders give the
court the power to order the organisation to address
the management failure that was the basis of the
conviction and also to put right any consequences of
that management failure that appear to the court to
have been a cause of death. But the effect of the
provision in question is that the court could go one
step further and require the organisation to remedy any
deficiencies in its policies, systems and processes for
the management of health and safety which created the
environment in which the fatal management failure
could occur.
If a company was convicted on the grounds of
inadequate staff training and it became clear at the
trial that the lack of training in the company was
indicative of a general disregard within the company
for health and safety, by using this provision the court
could order the organisation to develop and implement
new health and safety policies. We think that the
provision in question completes the picture of
remedial action. The courts will be able to take a
global view of the circumstances that led to a death
and to order remedy at any level, from practices on the
ground right up to the establishment of written safety
policies throughout the company which seem
necessary to prevent further death or injury. We want
these powers to underline that the offence is not just
about convictions and justice, but as we have
discussed on a number of occasions, about changing
corporate behaviour too.
House of Lords, Grand Committee, 18 Jan 07, column
GC 282

120

Section 9(3)
Section 9(4)
122
Section 9(5). Prosecution would be the responsibility of either the Crown Prosecution Service in England and Wales.
121

73

Any reduction in the fine would


reward
unfairly
the
few
organisations that have resisted
compliance with those standards,
and would lead to inequitable
treatment of the majority of
organisations that have taken
remedial action before the point of
sentence.123

Compensation Orders?
There is no actual provision in the Act for the court to
impose a compensation order, but section 130(1) of the
Powers of Criminal Courts (Sentencing) Act (PCCSA)
2000, would gives the court the power to make an
order requiring the organisation to pay compensation
for any personal injury, loss or damage resulting from
this offence, and it must give reasons for its decision if
it does not make such an order. The SAP made the
following comments about the use of this power.
A compensation order can be made in favour of the
relatives and dependants of the deceased, in respect of
bereavement and funeral expenses. An order in respect
of funeral expenses can be made for the benefit of
anyone who has incurred them, but compensation for
bereavement can only be made in favour of persons
who could claim damages for bereavement under the
Fatal Accidents Act 1976, namely the spouse of the
deceased or, in the case of a minor, his/her parents. The
maximum sum which may be claimed for bereavement
is 10,000.
More than one person may have been killed as a result
of the offence; others may have been injured. The
amount of compensation should be such as the court
considers appropriate, having regard to the offenders
means. Where both a fine and a compensation order are
appropriate but the offender lacks the means to pay
both, the compensation order payments will take
priority. Compensation paid is deducted from any
damages received in civil proceedings, so the existence
of a pending civil claim should not in itself prevent the
imposition of a compensation order. However, in cases
prosecuted for the offences considered in this paper,
the level of complexity surrounding the calculation of
compensation is likely to be such that it is an issue best
resolved outside the criminal proceedings. Whilst a
court is always under an obligation to consider whether
a compensation order can be made, it is more likely
that a court will decide to leave the issue to the civil
court, in which case it must give its reasons for doing
so.
(paras 87-89)

123

Para 86

74

Sentencing: Reform History


The Law Commissions 1996 report recommended that a fine and a remedial order should be the
only available sentences. It rejected proposals to introduce equity fines or corporate probation
and other sentencing ideas suggested by organisations - without providing any reasons (see para
7.1.5). Both the Governments consultation documents in 2000 and 2005 also only proposed a fine
and a remedial order.
The Parliamentary Scrutiny Committee recommended that, following the enactment of the Bill, the
Sentencing Guidelines Council should produce guidelines which state clearly that fines for corporate
manslaughter reflect the gravity of the offence and which set out levels of fines, possibly based on
percentages of turnover. It stated that it is particularly important that fines imposed for the
corporate manslaughter offence are higher than those imposed for financial misdemeanours (para
268). It also proposed that it would be useful for courts to receive a full pre-sentence report on a
convicted company, which would include details of its financial status and past health and safety
record. The Committee also proposed that directors should be able to be charged with contempt if
the company fails to comply with a remedial order and that a wider range of sentences was
essential. It suggested the following options (para 287/8):
company probation orders or a corporate death sentence (i.e. mandatory dissolution);
naming and shaming organisations, through the Health and Safety Executives Public Register of
Conviction and/or publicity in the media, by notice or in the companys annual report;
confiscation of assets associated with the offending and prohibition of the corporation from
business activities associated with the offending;
cessation from any activity in the company or company branch until an acceptable plan of action is
introduced or the revocation of any relevant licence or statutory authorisation allowing the
organisation to undertake its respective business activity;
equity fines;
punitive damages to be paid to relatives of victims;
the power to order the seizure of dangerous or defective equipment prior to conviction and the
forfeiture and destruction of such equipment after conviction;
restorative justice mechanisms; and
ensuring that conviction affects a companys Comprehensive Performance Assessment or leads to
an Audit Commission inquiry.
The Committee also thought that prosecuting authorities should have the power in appropriate
cases to ensure that companies do not try to evade fines by shifting assets (para 270) a
recommendation originally proposed by the Government in its 2000 report.
In its response, the Government agreed that sentencing guidelines should be produced and
whilst it accepted that an organisations turnover may be relevant, it would be concerned if it
were an overriding factor in any guidelines if, for example, that led to sentences which did not
properly reflect the offending behaviour or take into account fully the defendants ability to
pay. The Government thought that a pre-sentencing report was not necessary, since the courts
already had sufficient authority to obtain financial and health and safety information.
Instead of allowing the possibility of a director being prosecuted for failing to comply with a
remedial order, the Government decided that any failures to comply with the order should result
in a possibility of an unlimited fine in the crown court.
The publicity order was only introduced as an amendment by the Government in the House of
Lords.

75

Annex 1: Schedule 1 of the Act: List of Government departments etc.


Assets Recovery Agency
Attorney Generals Office
Cabinet Office
Central Office of Information
Crown Office and Procurator Fiscal Service
Crown Prosecution Service
Department for Communities and Local Government
Department for Constitutional Affairs (including the Scotland Office and the Wales Office)
Department for Culture, Media and Sport
Department for Education and Skills
Department for Environment, Food and Rural Affairs
Department for International Development
Department for Transport
Department for Work and Pensions
Department of Health
Department of Trade and Industry
Export Credits Guarantee Department
Foreign and Commonwealth Office
Forestry Commission
General Register Office for Scotland
Government Actuarys Department
Her Majestys Land Registry
Her Majestys Revenue and Customs
Her Majestys Treasury
Home Office
Ministry of Defence
National Archives
National Archives of Scotland
National Audit Office
National Savings and Investments
National School of Government
Northern Ireland Audit Office
Northern Ireland Court Service
Northern Ireland Office
Office for National Statistics
Office of the Deputy Prime Minister
Office of Her Majestys Chief Inspector of Education and Training in Wales
Ordnance Survey
Privy Council Office
Public Prosecution Service for Northern Ireland
Registers of Scotland Executive Agency
Revenue and Customs Prosecutions Office
Royal Mint
Scottish Executive
Serious Fraud Office
76

Treasury Solicitors Department


UK Trade and Investment
Welsh Assembly Government

77

Annex 2: Special provisions allowing for the prosecution of unincorporated


defendants
Conventionally, the only organisations able to be prosecuted for a criminal offence are corporate
bodies and rules of criminal procedure only apply to companies. This is because, in law,
corporate bodies have a separate legal identity from those who manage or own the organisation.
Moreover, unincorporated bodies do not owe duties of care to people for the courts to be able to
prosecute them. Therefore, a number of special provisions have had to be included within the Act
to enable the law to apply to crown bodies, police forces, partnerships and other unincorporated
bodies to which the offence applies.
In addition, separate provision is made to ensure that proceedings against a partnership are made
in the name of the partnership, and any fines imposed upon it are paid from the funds of the
partnership.124
The Secretary of State is also given the power to issue new orders125 making changes to the
procedure for prosecution of these bodies. For example, new orders will be necessary since the
current rules of procedure refer to a company director or secretary positions relevant only in
a corporate body - to make a plea on behalf of the company. These will need to be changed so
they can apply to these new unincorporated defendants.
Creating duty of care relationships: The offence is predicated on the need to be able to show
a duty of care relationship between the organisation and the person who died. Crown bodies,
however, do not owe duties of care.126 As a result, the Act contains a provision which states that
crown bodies should be treated as owing whatever duties of care it would owe if it were a
corporation that was not a servant or agent of the crown127.
Police forces and partnerships are in a similar position and therefore the Act contains a similar
provision for them to be treated as owing whatever duties of care it would owe if it were a body
corporate.128
Creating employer/employee relationship: Those who work for crown bodies, police forces
and the armed forces are not, in fact, legally employed by a particular crown body or by a
police force.129 Since one of the key relevant duties of care concerns duties owed by an
employer to an employee, it is necessary that the Act makes it clear that:
- those individuals working for a particular crown body are to be treated as employed by that
department or body;130 and

124

Section 14
These orders are subject to the negative resolution procedure, which means that they are laid before Parliament and become
law unless they are specifically annulled. In Scotland similar provision can be achieve under the existing powers of the High
Court to regulate procedure by Act of Adjournal.
126
They can only be sued through the operation of the Crown Proceedings Act 1947 which makes the Crown vicariously liable as
an employer or occupier for the acts of its servants and agents.
127
Section 11(1)
128
Section 13(2) for police and section 14(1) for partnerships
129
Those working for crown bodies are employed by or under the crown for the purposes of a particular body
130
Section 11(3)
125

78

- that members, trainees, special constables, cadets of a police force are to be treated as
employed by that force.131
- that members of the armed forces are to be treated as employed by the Ministry of
Defence132
Creating occupiers: Although individual government departments in fact occupy particular
premises, it is the Crown that legally occupies these buildings. As a result, in order to ensure that
the individual government departments are deemed to be an occupier under the Act and owe the
duties of care of any occupier, the Act states that these premises are to be treated as occupied
by the relevant government department or body. Similar provisions relate to the police.133
Changing functions: Section 16 of the Act sets out which crown body or police force will be
prosecuted when the functions - the carrying out of which resulted in the death - have been
transferred to another body.
The assumption is that the new body which has taken over the functions will be the body that will
be prosecuted. However, where the functions move to a body that is not a crown body or police
force, then the proceedings will take place against the last crown body or police force that carried
out the functions.
However, the Secretary of State does have the power to pass an order requiring that the
prosecutions take place against whichever organisation he or she considers appropriate.

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Section 13(3)(b) to (g)


Section 12(2)
133
Section 14(4)
132

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Annex 3: Companies convicted of Manslaughter (as of 6 April 2008)


Only 7 companies have ever been convicted of manslaughter.
In November 1994 OLL Ltd, a leisure activity company, was convicted of the manslaughter of
four students, Simon Deane, Clair Langley, Rachel Walker and Dean Sawyer, who died during a
canoeing trip in Lyme Regis in March 1993. It was fined 60,000.
In September 1996, Jackson Transport (Ossett) Ltd was convicted of the manslaughter of
James Hodgson, who died in May 1994 when he used steam pressure to clean a valve in a tanker
blocked with highly toxic chemicals. The company was fined 15,000.
In August 2001, English Brothers Ltd, a Wisbech based construction company, was convicted
of the manslaughter of Bill Larkman, a gang foreman, who died in June 1999 when he fell over
eight metres though a fragile roof to his death. The company was fined 25,000.
In October 2002 Dennis Clothier and Sons was found guilty of the manslaughter of Stephen
Hayfield who died in November 2000 when he was hit by a 20-tonne trailer owned by the
haulage company. It was fined 4.000.
In February 2003 Teglgaard Hardwood (UK) Ltd was convicted of the manslaughter of 18year-old labourer Christopher Longrigg who died in April 2000 when a stack of timber fell on
him whilst he was working for the company at the old Dunstans shipyard in Hessle.
In July 2004 Nationwide Heating Systems Ltd was convicted of the manslaughter of 21-yearold Ben Pinkham who died in February 2003 when an explosion occurred while he was using a
highly flammable solvent to clean a resin storage tank at the Princess Yachts International Yard
in Plymouth
In December 2004 Keymark Services was convicted of the manslaughter of Steven Law, Neil
Owen, and Benjamin Kwapong who died in a crash on the M1 in Northamptonshire in 27
February 2002 when Keymark lorry driver Steven fell asleep at the wheel and crashed into seven
vehicles. The court heard how lorry drivers were told to falsify records, so they could work
longer hours.
To see details: http://www.corporateaccountability.org/manslaughter/cases/convictions.htm

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Annex 4: CCAs Response to the Sentencing Advisory Panel


An Extract
Manslaughter is one of the most serious criminal offences perhaps second only to murder.
The gravity of the sentence that a court should impose upon a convicted organisation should
reflect the gravity of the sentence which the court can impose upon an individual. When
individuals are convicted of manslaughter, the most likely sentence is imprisonment and in
relation to work-related deaths, the most serious penalty so far imposed upon an individual
has been 7 years imprisonment. There is no reason why, in the future, sentences will not be
even higher. The CCA does not consider - nor can we see how any fair minded person could
consider - that a fine of 10% of a companys turnover has any where near the same level of
impact upon the company, nor impact in terms of social message, as a sentence of 7 years
imprisonment has upon an individual.
It appears from the SAP consultation document that the only reason the Panel considered
that 10% of an organisations turnover should be the highest possible expected sentence that
could be imposed by the court is that this is the maximum fine that can be imposed by the
Office of Fair Trading (OFT) when imposing penalties on companies that have infringed
competition law. However, the CCA believes that this is a highly inappropriate comparison:
- the OFT is dealing with administrative offences not criminal offences. The fine is imposed
through administrative means, not a criminal case proven in court beyond reasonable doubt
as will be the case of corporate manslaughter;
- the crime of manslaughter is clearly by far a more serious offence than an infringement of
competition law;
- the OFT is dealing with financial crimes; they are not offences involving a death of a
person.
Therefore, in the CCAs view, it would be simply inappropriate for a company convicted of
corporate manslaughter to be sentenced by a crown court for the most serious corporate
manslaughter at the same level as an administrative body would be fining a company for a
serious competition infringement. There must be a very significant gap between these two
otherwise the criminal law and, in particular the new offence of corporate manslaughter,
would risk losing a great deal of public credibility.
Our analysis (set out in our research report, see below) shows that although the fines at 10%
of the turnover would be much larger than those imposed by the court for health and safety
convictions following a death, in most of the cases these fines would represent less than half
of one years profits.
The levels of fines that a court can impose following a conviction must have a significant
deterrent effect in terms of both specific and general deterrence. The proposed percentages
do not achieve either end.
It seems that in determining the percentage range, the Panel has in some unspecified way,
taken into account the fact that a publicity order would be imposed upon the company. The
CCA disagrees that the fine range should have been affected by this. This is because there is
no certainty that the publicity order will result in any further negative impact upon the
company beyond which the normal publicity of a trial would provide.
See full response: www.corporateaccountability.org/manslaughter/reformprops/sentencing/main.htm
See research report: http://www.corporateaccountability.org/press_releases/2008/mar13sent.htm

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