Corporate Manslaughter and Health and Safety offences

1. Corporate Manslaughter and Health and Safety offences Richard Matthews

2. 1 Corporate Manslaughter Creates one offence – Corporate Manslaughter; Removes Crown immunity; No individual liability; DPP’s consent required for prosecution; Territorial extent: harm resulting death within the seaward limits of UK UK ship, hovercraft, aircraft, oil rig or in consequence of mishap affecting it

3. 2 The Offence 1. By an organisation subject to the Act, where; 2. The organisation owed a relevant duty of care to the deceased; and 3. The way in which its activities are managed or organised: caused a person’s death; amounted to a gross breach of that duty of care; by its senior management is a substantial element in the breach

4. 1. By an organisation subject to the Act

5. 4 1. The Organisations The organisations are— (a) a corporation; (b) a department or other body listed in Schedule 1; (c) a police force; (d) a partnership, or a trade union or employers' association, that is an employer.

6. 2. The organisation owed a relevant duty of care to the deceased

7. 6 2. The relevant duty of care = Any of the following duties owed by the organisation under the law of negligence— (a) a duty owed to its employees or to other persons working for the organisation or performing services for it; (b) a duty owed as occupier of premises; (c) a duty owed in connection with— (i) the supply by the organisation of goods or services (whether for consideration or not), (ii) the carrying on by the organisation of any construction or maintenance operations, (iii) the carrying on by the organisation of any other activity on a commercial basis, or (iv) the use or keeping by the organisation of any plant, vehicle or other thing

8. 7 Understanding the employer’s duty of care In law, an organisation as an employer, will owe different duties and be potentially civilly liable for breaches on the following bases: Primary liability for breach of a personal, non-delegable, duty of care. Vicariously liable for torts committed by employees in the course of employment. Liability for breach of a statutory duty. It is the first of these that is the relevant duty of care under the Act. An organisation may also owe a relevant duty of care arising from work to those workers who are not strictly employees and to those who provide services to it.

9. 8 The factors Forseeability of harm Proximity Whether it is just and reasonable to impose a duty of care

10. 9 The limitations and exclusions Sections 3–7 create a series of activities and circumstances exempt from be capable of founding a relevant duty of care for the offence. The sections are variously concerned with: public policy and exclusively public functions (s.3); military activities (s.4); policing and law enforcement (s 5); emergencies (s 6); and child and probation services (s 7).

11. 10 Public policy and public function. s 3 (1) Any duty of care owed by a public authority in respect of a decision as to matters of public policy (including in particular the allocation of public resources or the weighing of competing public interests) is not a “relevant duty of care”. (2) Any duty of care owed in respect of things done in the exercise of an exclusively public function is not a “relevant duty of care” unless it falls within s.2(1)(a) [employer duty] , (b) [occupier duty] or (d) [custody duty-not in force]. (4) “exclusively public function” means a function that falls within the prerogative of the Crown or is, by its nature, exercisable only with authority conferred— (a) by the exercise of that prerogative, or (b) by or under a statutory provision;

12. 11 Exemption for Military Operations: s.4 Wide range of operational military activities are exclusively public functions, excluded by s 3(2) s 4 excludes operations including peacekeeping dealing with terrorism, civil unrest or serious public disorder, in the course of which armed forces come under attack or face the threat of attack or violent resistance’ Any duty of care owed by MOD in respect of such operations, preparation or training of a hazardous nature which it is considered needs to be carried out is excluded

13. 12 Police Operations: s 5(1) & (2) s. 5(2): the limitation extends to certain policing ‘operations’, that: (a) are operations for dealing with terrorism, civil unrest or serious disorder, (b) involve the carrying on of policing or law-enforcement activities, and (c) officers/ employees come under attack, or face the threat of attack or violent resistance, in the course of the operations. s.5(1) provides no relevant duty of care in respect of: (a) such operations, (b) activities carried on in preparation for, or directly in support of, such operations, or (c) training carried out in a hazardous way, which it is considered needs to be carried out, for such operations

14. 13 Law enforcement: s 5(3) Section 5(3) creates a further exemption by providing that any duty of care owed by a public authority in respect of all other policing or law enforcement activities is not a ‘relevant duty of care’ unless it falls within s.2(1)(a) [employer duty] , (b) [occupier duty] or (d) [custody duty-not in force]

15. 14 Emergencies: s 6 s 6 provides that the offence does not apply to emergency services (fire, ambulance and NHS bodies), and some others, when responding to emergencies. Does not exclude the duties such organisations owe as employers, as occupiers nor to the duties that arise which do not relate to the way in which a body responds to an emergency. Emergency circumstances are those that are life-threatening or which are causing, or threaten to cause, serious injury or illness or serious harm to the environment or buildings or other property. The exemption does not extend to medical treatment itself, or decisions about this (other than decisions that establish the priority for treating patients).

16. 3. Gross breach & Causation

17. 16 3. Gross breach and causation s 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 person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. S 1(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).

18. 17 Gross Breach: s 1(4)(b) Section 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’.

19. 18 The section 8 jury factors A factor the jury must consider is whether the evidence shows that the organisation failed to comply with any H&S legislation that relates to the alleged breach of relevant duty of care A jury may 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 or produced tolerance of any such failure The jury may also have regard to any H&S guidance that relates to the alleged breach.

20. 19 The senior management test s.1(3) ‘An organisation is only guilty of an offence if the way its activities are managed or organised by its senior management is a substantial element in the gross breach.’

21. 20 “senior management” s.1(4)(c) ‘‘senior management’,.. 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.

22. 21 Health and safety duties & offences The Health and Safety at Work Act 1974 creates principal duties on employers: Duty to ensure, so far as reasonably practicable, safety of employees at work Duty to ensure the health and safety of others, so far as reasonably practicable, is not affected by the conduct of the employer’s business. Management of Health and Safety Regulations, creates a duty on an employer to make a suitable and sufficient assessment of risks arising to employees and others from work These duties are non-delegable and strict: the employer has to prove he is not guilty!

23. Individual offences 22 Section 7 – a duty on employees to take reasonable care for their heath and safety and of others who may be affected by their acts/ omissions Section 37 – liability of directors and senior managers for company’s offence where they have consented to (agreed with), connived at (turned a blind eye to) or where the offence is attributable in some way to neglect on their part. All health and safety offences now imprisonable!