Corporate Manslaughter and Corporate Homicide Act 2007 Flashcards
General structure to assessing corporate liability for Manslaughter?
1) The D is a relevant organisation (s.1(2))
2) The organisation owes a relevant duty of care (s.2)
3) The organisation breaches that duty
4) The breach causes death (s.1(1)(a))
5) The breach is a gross breach (s. 1(1)(a) and s.1(4)(b)); and
6) A substantial element of the breach is in the way the activities were managed or organised by senior management (s.1(3))
R v ICR Haulage [1944]
A company can incur criminal liability, but with 2 limitations:
1) Certain offences, by their very nature, can’t be committed by a company (e.g. rape, burglary, any crime requiring physical act)
2) Company can’t be convicted of any offence where only sentence can be physical (e.g. imprisonment)
The old system
Tesco v Nattrass [1972] - the identification principle (if the prosecution could prove that senior execs had necessary MR, company itself can be liable) BUT this was problematic, so new act!
s.1 CMCHA 2007
Organisation guilty if its activities are managed or organised:
a) causes death, and
b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased
1) D must be a qualifying organisation
s. 1(2) the organisations to which this section applies are:
(a) A corporation
(b) A department (or other body listed in sch. 1)
(c) A police force [THIS PART NOT YET IN FORCE]
(d) A partnership/trade union/employers’ association, that employs
NB – Crown immunity has been removed. Some government depts owe same duty of care as corporates. These include the Home Office, Dept for Transport, Dept for Defence
2) The organisation owes a relevant duty of care
s.2(1) Any duty owed under negligence
a. Employees/other persons working for organisation
b. Duty as an occupier
c. A duty in connection with:
- (i) The supply of goods/services
- (ii) Construction/maintenance
- (iii) Any commercial activity
- (iv) The keeping of a thing for another
d. Any person who the organisation is responsible for the safety of
s.1(4)(b)
conduct falls far below what can be reasonably expected in the circumstances.
s. 8(2)(a)
How serious failure was
s.8(2)(b)
How much risk of death it posed
s.8(3)(a)
iii. Attitudes, policies, systems or accepted practices that were likely to have encouraged any such failure or encourage tolerance of it
s.8(3)(b))
The Health and Safety Guidance
6) Management failure by ‘Senior Management’
b. s.1(3): A substantial element of the breach was in the way the activities were managed or organised by senior management
Definition of senior management?
c. Senior management = s.1(4)(c): People who play significant roles in:
i. The making of decisions about how the whole or a substantial part of the organisation’s activities are to be managed/organised (decision-makers); or
ii. The actual managing or organising of the whole or substantial part of those activities (hands-on management)
Management failures inc…
d. Management Failure, inc:
i. Poor training of frontline employees
ii. Procedures not followed by employees
iii. Poor management at an operational level of Business
iv. Failing to put proper Health and Safety systems in place, or failing to manage and enforce those systems effectively
Health and Safety mentioned in s.8(3)?
CMCHA says that jury must have regard to any health and safety guidance that relates to the alleged breach.
