Richard Matthews

1. The Corporate Manslaughter and Corporate Homicide Act 2007Judicial Studies Board for Northern Ireland Richard Matthews

2. The Act • Creates one offence – Corporate Manslaughter; • Abolishes common law for organisations; • 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. 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. 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. Government bodies and Crown immunity • Sch 1 sets out 48 Government departments/ Crown bodies that are deemed to be organisations subject to the Act. • s.11(1) provides, ‘An organisation that is a servant or agent of the Crown is not immune from prosecution under this Act for that reason.’ • S.11(2) provides that a Sch 1 body and a ‘corporation that is a servant or agent of the Crown’ is to be treated as owing whatever duties of care it would owe if it were a corporation that was not a servant or agent of the Crown’.

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

8. 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

9. Relevant duty of care: a judicial determination of law and fact “For the purposes of this Act, whether a particular organisation owes a duty of care to a particular individual is a question of law. The judge must make any findings of fact necessary to decide that question.” s 2(5)

10. “.. the standard textbook on the duty of care in the law of negligence in the civil world .. is a very large amount of literature. The issue has gone to the House of Lords for decision very many times in the past ten years. I was very troubled about the possible consequences. However, if you make this a question of law for the judge, depending on whatever facts he has to find…I do not think it presents a problem. “

11. “The questions of fact that the judge will need to consider will generally be uncontroversial and in any event will only be decided by the judge for the purposes of the duty of care question“[Corporate Manslaughter and Homicide Bill [HL 19], Explanatory Notes para 24 ] • “Criminal proceedings will often involve questions that need to be decided by the judge as a matter of law and this matter will fall to be decided in the same way. “[Mr Gerry Sutcliffe MP (Parliamentary Under-Secretary of State for the Home Department)]

12. Directing the jury • s.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’. • This test would appear to involve the determination of two questions by the jury: • What was reasonably expected of the organisation in the circumstances?; and • Did the conduct of the organisation, the way in which its activities were managed or organised, fall far below that standard?

13. The Caparo factors • Foreseeability of harm • Proximity • Whether it is just and reasonable to impose a duty of care

14. s. 2(1) (a) the duty owed to employees and other workers • Approx 200 – 270 worker deaths per year (approx 70 in construction) • The Explanatory Notes describe how this category, ‘will include an employer’s duty to provide a safe system of work for its employees. An organisation may also owe duties of care to those whose work it is able to control or direct, even though they are not formally employed by it. This might include contractors or volunteers. The new offence does not impose new duties of care where these are not currently owed.’

15. 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.

16. The employer duty – problems & issues • Who is an employee? • Agency workers • Non-employee workers • Distinguishing vicarious liability • Statutory health and safety duties • Volenti non fit injuria

17. 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).

18. 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;

19. 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

20. 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

21. 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]

22. 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).

23. 3. Gross breach & Causation

24. 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).

25. 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’.

26. 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.

27. 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.’

28. “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.

29. Sentencing powers • An organisation guilty of corporate manslaughter ‘is liable on conviction to a fine’ • A judge may impose a ‘remedial order’ • A judge may impose a ‘publicity order’

30. The Last Slide! • Estimated 10-13 additional prosecutions a year (including 2 – 3 from Scotland and NI) • Existing Work Related Death Protocol to remain • No new police powers – how obtain senior management evidence? • 3 years until the custody duty?