Large companies and organisations frequently avoided prosecution and conviction arising out of fatal accidents even in situations where their own failures had been responsible. Prosecutions required proof of gross negligence manslaughter together with proof of the individual being a controlling mind of the company. In many cases, the larger the company, the greater the failings yet the harder it was to prove a case against a single individual said to be controlling the corporate mind such that there could be a sustainable case of gross negligence.
Finally, by virtue of the Corporate Manslaughter and Corporate Homicide Act 2007, which came into force on 6 April 2008, prosecutions of companies became a reality. The CMCHA 2007 was a landmark in law. For the first time, companies and organisations could be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care.
Under the 2007 Act, a threefold test was established:
- Did the way an organisation managed or organises its activities cause a person’s death?
- Did that organisation amount to a gross breach of a relevant duty of care owed by the organisation to the victim? And
- Did senior management play a substantial part in the breach? [Senior Management are those who play a significant role in the organisation’s activities are managed and conducted]
This new law made it much more likely that larger organisations, with systemic failings, would be answerable if such failures resulted in a cause of death. [The Hatfield Rail Crash by way of example.]Much will, however, depend on whether or not the risk management for health & safety complies with legislation or whether there is evidence of a ‘gross breach of duty’. Prosecutions have been made possible but they are difficult.
If convicted, the company/organisation is liable to an unlimited fine along with other penalties including remedial orders to correct failings and policies alongside publicity orders requiring the defendant company publicising their own conviction.
The 2007 Act applies not only to companies but to partnerships, local authorities and even NHS Trusts. Jurisdictionally, the key is where the injury or harm that caused the death occurred. Accordingly, UK companies operating abroad would not be liable under this legislation.