The Corporate Manslaughter and Corporate Homicide Act 2007 was finally came into force this week. Following years of campaigning, the implementation of the legislation will make it easier to prosecute companies for deaths that they have been accused of causing.
When considering the criminal liability of a corporation it is necessary to establish the mens rea (mental element) to make it possible to prosecute for any wrongdoing. The attribution of mens rea to a corporation for manslaughter has for a long time been difficult to prove. The concept of culpability could be viewed as being solely a human attribute, and impossible to ascribe to an obviously ‘artificial’ company that would, in theory, be unable to manifest such action.
The absence of an identified person has been the main dilemma in pinpointing the blame for corporate wrongdoing. An individual within the company hierarchy would need to be acknowledged as being responsible for the incident, for example a manager or other controlling officer. The problem in recognising such a person is particularly challenging with respect to the chain of command of a large corporation. Within such a company the safety policy can become unclear due to the business having a scattered structure, and it may become impossible to identify a specific individual who embodies the directing mind of the company and possesses the necessary mens rea for the crime.
The new law means that the joint actions of an organisation’s management team can now be considered when attempting to find blame. The company as a whole, or a group of senior managers can now be found to hold culpability for the offence. Although a person cannot be imprisoned under the legislation, an unlimited fine can be imposed on the company. It is hoped that any fine obligated will be of a considerable amount in comparison to the corporation’s annual turnover – possibly up to 10% of their annual turnover. The fine will be enforced alongside a publicity order that will require the company to publicise particular details of their offence and their subsequent conviction.
Adrian Bever, a solicitor with Addleshaw Goddard told The Timesnewspaper that the new measures were the ‘most significant change in health and safety law for 30 years’.
Tom Sheffield, technical director at risk management firm Aeon told the press: ‘MPs such as David Blunkett have argued that numerous public disasters and workplace accidents caused by companies’ gross failings have gone without punishment because the government has not previously had good tools to prosecute effectively. This inability to convict has been the largest driving force behind the new Act. Armed with this new law, prosecutors could be eager to put these weapons to the test. As such, this really serves as a wake-up call to business to update their health and safety controls for the well-being of their employees and the public.’
Disturbingly, according to the British Safety Council many businesses remain ignorant of the new law. Leaving them open to serious charges, awareness of the act is as low as 53% in some regions. In their research, employment law firm Peninsula found evidence to suggest that as much as 79% of businesses have not taken any steps to prepare for the new law.
Workplace deaths are not as uncommon as some may perceive. Between 2006 and 2007 there were 241 employee deaths. Ninety members of the public also lost their lives due to accidents that had occurred in workplaces.
Under the new law, breach of the company’s responsibility to protect the health and safety of its employees and the public will occur if there has been a failure in:
-Ensuring all staff have adequate health and safety training
-Making sure all lifts are properly maintained and adequate fire precautions have been taken
-Checking all equipment is in a safe condition
It is hoped that the act will, through practice, become easier to work with than its predecessor. The earlier law had, on occasion, been over-interpreted by the courts and in turn caused additional nuisances. Following the years of injustice in cases throughout the years (the most high-profile being the Zeebrugge disaster), it is anticipated that the new law will bring about a higher level of health and safety in the workplace, and deter companies from neglecting their responsibilities.
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This post was written by Chris Bath