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Posted By Paul Darby
I have just been sent a copy of an e-mail saying that the Corporate Manslaughter Bill has been passed and comes into force on April 8th 2008.... but by the tone of the e-mail the HSWA74 still carries a lot more clout!
I can't find any reference to it on the HSE or IOSH websites?
Has anyone else heard anything?
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Posted By Chas Have a look at this link http://www.nurs.co.uk:80/news/articles/cms/1185297980212694732844_1.htm
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Posted By Heather Collins
Paul - this question was asked on this forum yesterday. Look at the bottom of the page and you'll find the answer.
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Posted By Paul Darby
Ah ha, OK that answers the question but what are the views about how much it actually changes things?
Historically, there doesn't seem to much difficulty in prosecuting large corporates in the past, and there seems to be no provisions in this new Act for increased fines, prison sentences or targetting individuals?
So what does it change?
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Posted By Pugwash
>So what does it change?
It changes nothing in terms of penalties. However a conviction for manslaughter rather than a breach of s2 or s3 of HASWA might concentrate the minds of the controlling officers of the guilty organisation after the event. It might also help make the relatives of the deceased feel slightly less worse about their loss.
Will it have any influence on standards of health and safety in the UK? I suspect it will have no effect whatsoever and I have long been puzzled why IOSH made support of the Bill one of their campaigns. Now the Bill has been passed into law, will practitioners make any changes to the advice they give to their employers? I don't think so.
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Posted By Heather Collins
It changes the need for a "controlling mind" to be identified in order for there to be a prosecution for corporate manslaughter. This has been a significant stumbling block in the past in prosecuting companies after major incidents (Townsend Thorensen springs to mind). The new law will only require a gross failure in H&S management, which should be easier to prove.
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Posted By Robert K Lewis
I think however that the main problem will be to define when a failure becomes Gross.
If the law is breached on a serious matter is that breach gross per se because the consequences were ultimately extremely serious even if the breach was due to a momentary error?
Does the number of people killed make the same breach gross when it might not have been if one person only was killed?
Does the existence of an acop reccomendation make the offence gross if an alternative but unsucceessful measure were selected.
The matter is still open and I suspect the case law will begin to founder on this definition - Gross Negligence manslaughter faces the same issues of definition and this has become rather circular in that it is gross if it is regarded so gross as to be criminal.
Bob
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Posted By Margia
Only just caught up with this thread and I'd agree with Bob that definition is going to be a problem.
But can I raise another point - on my reading of section 8, Factors for jury, HSGs and other guidance material will be raised to a similar status as ACOPs in that they can be produced in court -
8(3) The jury may ... have regard to any health and safety guidance that relates to the alleged breach.
8(5) In this section "health and safety guidance" means any code, guidance, manual or similar publication that is concerned with health and safety matters and is made or issued (under a statutory provision or otherwise) by an authority responsible for the enforcement of any health and safety legislation.
Also section 10, Power to order conviction to be publicised. Do you think fear of public sackcloth and ashes might be a useful persuader for directors?
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Posted By Raymond Rapp
The term ‘gross negligence’ has been transposed from the civil law doctrine of the tort of negligence and a duty of care. The test of gross negligence was set out in the case of R v Adomako as follows:
1. The defendant owed a duty of care to the deceased; and
2. He/she was in breach of that duty; and
3. The breach was a substantial cause of the death (ie something more than trivial); and
4. The breach was so grossly negligent that the defendant can be deemed to have had such disregard for life of the deceased that it should be seen as criminal and deserving of punishment by the state.
The difficulty with the term ‘grossly negligent’ stems from the compatibility with current law concept that the 'failure must fall far below what can be reasonably expected of the undertaking in the circumstances.' How that can be objectively measured, or rather interpreted by the court remains to be seen.
Regards
Ray
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Posted By Paul Darby
So it appears that, as I suspected, nothing major has changed and we have no real extra clout to hit the Board of Directors with:
1. There has always been the ability to be convicted and imprisoned for manslaughter for a fatality at work. Which is why the Police become involved from the word go following a death.
2. There has always been a lot of media publicity about H&S failings, including naming names, even before any guilt has been proven.(reference and major rail accident)
3. There already exists the ability for prison and unlimited fines (£1.2m for British Gas).
I am really stuggling to see what the issue has been about with Corporate Manslaughter being introduced. I work for a major world company, previously to Corporate Manslaughter it would have been most likeley that the "body corporate" that was convicted, and next April it is the body corporate that would be convicted.
I was kind of hoping to be able to go to my Board with a bit more in my armoury, but at the moment if they ask what has changed, I am not sure I can truthfully tell them much that will make them sit up.
The only thing I can really see that is different, is the headline will read "xxxx company convicted of Corporate Manslaughter" rather than "xxxx convicted of death"
Am I seeing this incorrectly?
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Posted By The toecap
Good point but, a headline of that nature can wipe big cash off share prices. So itmay have a good effect on board members.
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Posted By Paul Darby
yes, that is true, but unfortunately (and maybe this is the way the world is) we will have to wait for the major accident, headline, drop in share price (then rapid recovery as memories fade) and public response before we can use it as a weapon in our safety armoury.
One of the things I have always forund with very senior board memebers in large companies, is that unless a major incident is in the same industry or along the same business lines as their industry they find it very difficult to relate to it.
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