July 2006
The Home Office published the Corporate Manslaughter and Corporate Homicide Bill on 21 July. This interim briefing on the Bill by Thompsons Solicitors will be followed by more detailed analysis in due course.
The amended Bill makes few changes to the original draft Bill. For a copy of our briefing on the draft Bill go to:
http://www.thompsons.law.co.uk/ltext/dload/corpmans.pdf
Whilst there are a number of flaws in the amended Bill, there are many improvements too. These include:
(i) more comprehensive crown immunity;
(ii) application of the Bill to the police;
(iii) increased cover for agency workers and suppliers of services, particularly relevant to the construction industry;
(iv) improvements and clarification of the meaning of duty of care;
(v) improved guidance to juries in considering whether there was a gross breach;
(vi) penalties for breach of a remedial order (fines)
However, the Bill retains:
(i) the senior manager test as per the draft Bill
(ii) fines and remedial orders as the only penalties
Retaining the senior manager test is the biggest flaw in the Bill and will substantially weaken it. It retains a form of controlling mind test, similar to that which has waylaid the common law, making it virtually impossible to bring a conviction. The proposed management failure test, which the Home Office select committee accepted and which was recommended by the law commission , is rejected.
The penalty for an offence is essentially a fine. However it is difficult to see how much difference there will be with this offence and prosecutions under the Health and Safety at Work Act where a death has occurred. We have already seen, with Hatfield, the Court of Appeal intervene to reduce a high fine. Unless there are clear guidelines for massively increased penalties this will also prove to be a major flaw.
There is no indication yet as to what the sentencing guidelines council will recommend.
The failure to introduce secondary liability for the offence is also a weakness as it excludes liability for those who connive , or conspire or collude in the commission of the act which results in death. The select committee did recommend inclusion of secondary liability. It is not clear why the government has rejected this recommendation.
The failure to move on directors duties and liability is a major weakness in holding companies to account. At present directors have minimal statutory responsibility for safety. Unless directors have some degree of accountability, safety will not be given the priority that is needed lower down in the companies management structure.
The failure to consider alternative penalties such as corporate probation is a weakness. Fines alone are insufficient.
The failure to extend the bill to cover unincorporated bodies means that partnerships and sole traders remain immune to the Bill. Thompsons Solicitors with the GMB are at present pursuing a judicial review against the CPS for failing to bring manslaughter charges against a sole trader roofing company. The irony is that this company could not be prosecuted under the terms of the Bill as it stands. The select committee requested that the government give this anomaly serious further consideration. It does not appear to have done so.