Simon Mather, partner in Ricksons Solicitors looks at the issues around the new corporate manslaughter bill. Simon can be contacted on: 0161 833 3355.
ACTIVITY regarding work-related fatalities began in 1996, when the Law Commission published a report which recommended, inter alia, the creation of a new offence of 'corporate killing'.

Government indicated a strong commitment to look into these proposals and in May 2000 published a consultation document. Strong sanctions were suggested for corporations/undertakings, and for individuals, involved in work-related fatalities.

After more consultation, in 2005, a draft Bill was published. Corporate 'killing' went off the agenda and a new offence, 'corporate man-slaughter' was proposed. This is a little confusing since we already have an offence of corporate manslaughter. This current offence is committed when the 'directing mind' of a company, sufficiently senior to be identified as the 'embodiment' of the company itself, is found guilty of gross negligence manslaughter. What we know now as corporate manslaughter would be abolished. This is because corporate man-slaughter as we know it does not work. Why not?

There is less difficulty if the company is small and the 'directing mind' is easily identifiable. Convictions for corporate man-slaughter can be and have been secured. The problem arises when the company is large - identifying the directing mind is nigh-on impossible. Indeed there has never been a successful prosecution for corporate manslaughter involving a large company.

So, old corporate manslaughter is to be replaced by new corporate manslaughter. The key difference will be that gross negligence manslaughter by the directing mind will no longer be a prerequisite. While it will still be possible to prosecute individuals for gross negligence manslaughter, not being able to do so will not prevent the authorities prosecuting the company for corporate manslaughter. The company will be guilty of the new offence if the way in which any of its activities are managed or organised by its senior managers causes a person's death and amounts to a gross breach of a relevant duty of care owed by the company to the deceased. This new test will, it is suggested, make it easier to secure prosecutions for corporate manslaughter, whatever the size of the company.

But lobby groups are not content. They consider the original proposals have been watered down and the test to be applied is too complex. There is an ongoing debate as to what is a 'senior manager' and as to the definition of gross breach: a breach of duty of care by a company will be a 'gross' breach if the failure in question constitutes conduct falling far below what can reasonably be expected of the company in the circumstances.

The joint report of the Commons Home Affairs and Work and Pensions Committees (December 2005) evidences the debate. It makes it clear the key issue for the committees is whether the proposals 'satisfy those who have previously felt so let down by the law' (while the views of the bereaved are of course very important, should they be the overriding issue when a law is being reformed?) The committees made no fewer than 57 recommendations, the most important of which would see a considerable toughening up of the current draft proposals:

1. Removal of the concept of 'duty of care in negligence' and a return to the Law Commission's original proposal that the offence should not be limited by reference to any existing legal duties but that a company should be liable for the offence whenever a management failure of the company kills an employee or any other person; affected by the company's activities.

2. A test should be devised that catches the essence of corporate culpability. The offence should not be based on the culpability of any individual at whatever level in the organisation but should be based on the concept of a 'management failure'.

3. The report welcomes the higher sentences given in recent cases following convictions for high profile health and safety offences which involved deaths (record fine, £15million). However there is a need for an improved system of fining companies, such as fines based on percentages of turnover.

4. It should be possible to prosecute and imprison an individual who has been a secondary party to the gross management failure.

The see-sawing of the last 10 years reflects the polar positions here: the victims' families seeking justice for their loved ones, and the companies trying to run their businesses free of the fear of unwarranted sanctions. For the families, the fatal consequences of the negligence often make the same gross in their eyes; for the companies, while the consequences can be fatal, the negligence itself might have been minor. Only the death itself is common to both sides. Balancing these competing interests is not proving easy. If there is to be reform (probable though not inevitable) there will be continued pressure from the lobby groups to tighten up the Bill so that it resembles what was proposed originally.

In any event, there are likely to be developments regarding directors' duties in managing health and safety, coupled with the generalised pressure to affect an increase in penalties imposed when health and safety offences are committed. There is an appetite for imposing more imaginative sanctions on those companies and individuals who come before the courts under current legislation. All companies should continue to sharpen their focus on issues of health and safety - if they do not, they and their key people might find unpleasant consequences lie in wait for them, whether or not the bill reaches the statute-book.