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Corporate Manslaughter and Corporate Homicide: what is a gross breach?
Workplace Law
04 March 2008
A key concept within the Corporate Manslaughter Act is what amounts to a "gross breach" of an organisation's duty of care towards a deceased person and how far that will change the legal landscape for corporations.
Section 1 sets out the offence which will be committed if the way in which an organisation manages or organises its activities, substantially by senior management, causes a person's death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased (S.I(I)).
Conduct will amount to a gross breach if it falls far below what could reasonably be expected of the organisation in the circumstances (S.J(4)(b)), This will inevitably involve the determination of two separate questions: what could reasonably have been expected of the organisation in the circumstances and did the conduct fall far below that?
The Expanatory Notes to the Act make clear that "[t]here is no question of liability where the management of an activity includes reasonable safeguards and a death nonetheless occurs."
The Government's intention was for the Act to provide a clearer framework for assessing an organisation's culpability by setting out clear guidance as to the meaning of gross breach which puts the management of an activity into the context of an organisation's obligations under health and safety legislation. Section 8(I) sets out its purpose and application namely where "(a) it is established that an organisation owed a relevant duty ofcare to a person and (b)it falls to the jury to decide whether there was a gross breach of that duty." Sections 8(2) and 8(3) then go on to set out a number of factors that the jury must or may consider in deciding whether there was a gross breach ofa duty ofcare. Those factors are not restrictive -section 8(4) specifically states that "[t]his section does not prevent the jury from having regard to any other matters they consider relevant."
Section 8(2) requires a jury to consider "whether the evidence shows that the organisation failed to comply with any health and safety legislation that relates to the alleged breach, and ifso how serious
that failure was and how much of a risk of death it posed",
This reflects elements required in the test for individual gross negligence manslaughter in which the jury has to consider whether "having regard to the risk ofdeath involved, the conduct of the defendant was so bad in alJ the circumstances as to amount in their judgment to a criminal act or omission" (R v. Adomoko [1995J [ AC 17I).
A jury may consider"the extent to which thc evidence shows that there were attitudes, policies, systems or accepted practices within the orgarusation that were likely to have encouraged any such failure [...] , or to have produced tolerance of it" (s.8(3)(a)).
This new ability for the jury to consider the wider context in which any breaches occurred, including cultural issues within the organisation which may have led to encouragement or tolerance of such breaches, is a potent weapon in the prosecutorial armoury against organisations with a less than rigorous approach to health and safety and is very likely to facilitate successful prosecutions.
Section 8(3)(b) also allows a jury to consider "any health and safety guidance that relates to the alJeged breach". Whilst clearly It is not compulsory to follow guidance, as the , Explanatory otes make clear, "where breaches of relevant health and safety duties are established. guidance may assist ajury in considering how serious this was."
Section 8(5) defines "guidance" in a broad sense as "any code, guidance, manual or similar publication that is concerned with health and safety matters and is made or issued (under a statutory provision or otherwise) by an authority responsible for the enforcement of any health and safety legislation."
Ministry of Justice guidance suggests that factors which a court may consider under the new offence "will range from questions about the systems ofwork used by employee's their level of training and adequacy of equipment, to issues of immediate supervision and middle management, to questions about the organisation's strategic approach to health and safety and its arrangements for lisk assessing, monitoring and auditing its processes: It goes on to suggest that it will not just be the formal systems for managing an activity which will be considered, but how those systems operate in practice, with specific reference to a jury's new ability "to consider evidence of broader attitudes within the organisation towards safety".
It is clear that compliance with health and safety will be paramount in a jury's deliberation of corporate manslaughter prosecutions of organisations. It will form the meat in any prosecution case against a defendant organisation, and will inevitably have to be dealt with in equal measure by the defence -and will include both specific and broad questions relating to the health and safety enforcement of the organisation: whether the risk assessment, safeguards, training, supervision and equipment in the particular instance were reasonable and/or appropriate and also broader questions relating to the strategic approach and culture to health and safety within the organisation.
In short, organisations will be subject to greater scrutiny than ever before. This should move health and safety right up the agenda of all organisations. lf convicted an organisation will be an unlimited fine, is highly likely to be the subject of a publicity order and where appropriate, a remedial order.
The Institute of Directors' recent guidance sets out three essential principles for organisations to follow to ensure good health and safety performance-strong and active leadership from the top, worker involvement and assessment and review.
The key message for businesses is that from top to bottom health and safety must be incorporated into the culture and figure prominently within the organisation both at the highest levels as well as in day-to-day practices and systems.