25 April 2008
The new Corporate Manslaughter Act came into effect this month, meaning that, for the first time, public and private organisations whose negligence causes death will face the full weight of the law
The Corporate Manslaughter and Corporate Homicide Act 2007 came into force on April 8 this year. The Act remedies decades of difficulties in prosecuting large organisations that have caused the death of an individual or individuals by gross negligence.
The Barrow-in-Furness case illustrated the problems that prosecuting authorities faced in securing a conviction under the old common law offence.
The borough council had been charged with manslaughter over the deaths of seven people from legionnaire's disease in 2002, but the judge felt that he had no option but to order that the charges be dismissed.
Following that case, some commentators suggested that it was impossible to secure a conviction against a large organisation. This was because before the body itself could be convicted, a single individual had to be identified as both its 'directing mind' and personally guilty of gross negligence.
The government promised action and it has finally arrived in the form of a new offence, introduced by the 2007 Act. This provides that any organisation that causes a person's death by way of a gross breach of the relevant duty of care will be guilty of an offence, provided that the way in which the activities of the organisation are managed or organised by its senior management is a 'substantial element' in the breach. This gets over the old problem of having to identify a single individual in the organisation.
Councils and other public bodies are obviously now very much in the line of fire but as the new law has been well heralded, most are geared up to deal with the relevant health and safety issues. However, there are several areas of uncertainty in relation to penalties.
The primary penalty provided by the Act is financial. The court now has the ability to fine a company in the private sector on a percentage of its turnover. The sentencing guideline proposals suggest that 5% should be the starting point under normal circumstances. This would be a stinging penalty for most businesses and should provide an effective deterrent for behaviour of the type outlawed.
But councils and health authorities, of course, are not in 'business' as such. In similar proceedings under the Health and Safety Act with Barrow-in-Furness, the judge commented that to fine a public authority substantially is merely to recycle public money and might be against the public interest. Accordingly, he levied a fine of £125,000 but made it clear that it would have been much more had the council been a private sector company.
But before local authorities (and their finance directors) heave a huge sigh of relief, there is another aspect of the penalty regime, namely 'publicity orders'.
Under section 10 of the Act, the court could order the organisation convicted to publicise that fact, including the particulars of the offence, the amount of any fine and any other remedial order made (this is another element of the penalty regime, which involves the organisation being made to put something right).
These publicity orders might prove to be far more effective than any fine could ever be. They could affect the standing of the council's management team, both at Cabinet and officer level, as well as staff recruitment and the ability to attract people to stand as councillors.
And, of course, the effect at local elections could be devastating.
The ramifications might go even further. If senior management is shown to be implicated, via poor management systems, they will almost certainly face disciplinary proceedings, if not personal prosecution for their part.
In relation to councillors, consideration is being given to the circumstances in which a leader elected for four years might be removed from office. Perhaps this might offer an example.
There are also implications for the government's choice agenda. While you have no choice as to the identity of your local authority, you can vote them out of office; but in other areas you can choose. This might apply to schools or colleges, to NHS trusts and other public bodies. Where choice is an issue, a conviction of this type will do nothing to help that public body attract students, patients or clients.
The government does not expect that the new Act will open the floodgates for prosecutions, but some high-profile cases are inevitable.
Once these have been aired in court under the new law we should be a little clearer on what the real sanctions for corporate manslaughter will be.
PFapr2008
