The Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008.
The Act allows organisations to be prosecuted if a death results because of the way in which its activities were managed and which amounted to a “gross breach of a relevant duty of care owed by the organisation to the deceased” (Section 1) (1) (b).
The Act applies to corporations, the police force, partnerships, trade unions and employer associations who are employers and government agencies and departments. In all, if you are an employer then this Act will apply.
The Act does not bring in any new duties but an offence will be committed where failings by an organisation’s senior management is considered to be a substantial element in any gross breach of the duty of care that it owes to its employees or members of public and which results in death.
The Act sets out definitions of the meaning of relevant duty of care and what factors have to be taken into account by the jury to establish whether there has been a gross breach of that duty of care.
The main penalty is an unlimited fine because a company cannot be imprisoned. However, the Courts can impose a publicity order and can also require remedial action to be taken. The Sentencing Council has set out in its guidelines factors that need to be taken into account when considering sentencing. It states that there will be a broad range in fines because of a number of factors. However, it does state that:
“Fines must be punitive and sufficient to have an impact on the defendant”.
It goes onto state further that
“Fines cannot and do not attempt to value human life in money…… The fine is designed to punish the defendant and is therefore tailored not only to what it has done but also to its individual circumstances. The offence of corporate manslaughter because it requires gross breach at senior level will ordinarily involve a level of seriousness significantly greater than a health and safety offence. The appropriate fine will seldom be less than £500,000 and maybe measured in millions of pounds”.
Thus if there is a prosecution under this Act, companies must recognise the substantial financial implications that will result from fines that will be given by the courts.
The courts can also impose as well as a fine, payment of the prosecution costs and, can order that the sentence be published in the newspapers. Finally, the courts can also make a remedial order which is a requirement to remedy the breach that led to the prosecution.
In all, a prosecution under this Act can have serious financial penalties for a company. At Silver Shemmings we are able to advise on prosecution and other claims bought by the HSE.