You may recall the 1987 disaster involving a ferry called Herald of Free Enterprise which capsized shortly after leaving the Belgian port of Zeebrugge because its bow doors have not been properly closed. It took the lives of nearly 200 people. Albeit compelling evidence that irresponsible management decisions contributed to operational dangers, which ultimately led to the tragedy, the company in question was able to escape prosecution.
However, this would not be the case today. The Corporate Manslaughter and Corporate Homicide Act has now been in force 2 years. So what has it meant? Essentially, any organisation will be guilty of the new offence if the way in which any of its activities are managed or organised by its senior managers causes a person's death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
The offence is directed at organisations and includes corporations, certain government departments, limited liability partnerships, trade unions, police forces, partnerships which are employers, but not individuals. However, directors, managers, board members and other individuals still remain liable under health and safety laws or general criminal law.
Moreover, the duty of care is not limited to breaches of health and safety and could also arise, for example, under environmental law. An organisation guilty of the offence will be liable to a fine and the Sentencing Guidelines Council suggests fines of up to10 per cent of an organisation’s annual turnover. In addition to a fine, the court may also make a "remedial order" forcing the organisation to remedy the management failure which caused the death or a "publicity order" forcing the organisation to publicise details of the conviction.
Although the Act does not impose any new health and safety requirements the prospect of prosecution has prompted many organisations to review their current systems and processes for managing health and safety. Without doubt any costs incurred by companies in order to familiarise themselves with the Act has been money well spent.
Dutton Gregory can be contacted in Hampshire and Dorset on 01962 844333
