The Corporate Manslaughter and
Corporate Homicide Act 2007
Judicial Studies Board for Northern Ireland
Richard Matthews
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
1
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
2
1. By an organisation subject to the
Act,
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.
4
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’.
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2. The organisation owed a relevant
duty of care to the deceased
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
7
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)
8
“.. 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. “
9
• “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. “
the Home Department)]
10
[Mr Gerry Sutcliffe MP (Parliamentary Under-Secretary of State for
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?
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The Caparo factors
• Foreseeability of harm
• Proximity
• Whether it is just and reasonable to
impose a duty of care
12
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.’
13
• 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.
14
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
15
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:





16
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).
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 dutynot 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;
17
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
18
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
19
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 dutynot in force]
20
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).
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3. Gross breach & Causation
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).
23
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’.
24
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.
25
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.’
26
“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.
27
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’
28
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?
29