Afternoon,

A couple of my team just did the NEBOSH Fire Safety Cert at a highly regarded training centre somewhere in England. One of the nuggets they picked up was that due to the Corporate Manslaughter Act, Guidance should be treated as having the same status as an ACOP. Now, they both have NEBOSH Dip, in fact one of them has taught the Dip at a University, so they didn't actually believe this. I looked at the Act.

I had a look at the Act, and there is a little bit of something in it, in s8(3) it says:

'The jury may also—
(a) 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 any such failure as is
mentioned in subsection (2), or to have produced tolerance of it;
(b) have regard to any health and safety guidance that relates to the alleged
breach.'

Which certainly indicates that H&S guidance would be used by the jury in making a decision. This seems quite a bit short of equivalence between guidance and ACOP, but it is indicative.

I haven't been to any seminars or training events about this Act since it was in consultation in 2006, so if any legal bods have an opinion about this I would be quite keen. As always it seems to me the best way to avoid this is to do things, SFARP, right, and then corporate manslaughter isn't a problem, but still, what do people think?

John

It could be read that way certainly,

John

It will be interesting to see how this is interpreted by juries over time.

I've been advised that as well as HSE guidance it could also be interpreted to mean things such as manufacturers instruction booklets/training material, in-house guides/SSoW etc and it doesn't have to be the limited to just the written word either.

Thanks for that Phil. I do agree that there doesn't seem any particular need to give Guidance the same status as an ACOP; the two complement each other and have always allowed a degree of necessary flexibility in achieving the objective. However, I also have to say that I think s8(5) does certainly put all 'official' H&S literature on the same footing.

This is all of course only in respect of CMCHA, and would only apply once an organisation had been arraigned and the jury deliberating; by that time it's probably all a bit too late anyway.

This could be a case of 'legislative creep', at least insofar as CMCHA is concerned,

John

I'd noticed this at the outset. Another example of poorly drafted legislation.

We all wait to see what judges make of it but I'd be surprised if a judge would accept any old guidance without looking closely at its provenance, especially bearing in mind the seriousness of the charge.

It's not unusual to find some HSE "guidance" produced by regional office without full approval of the HSE board, as far as I understand things. Personally I think a judge would be very wary of allowing such evidence into court if challenged, unless there was clear evidence the source and author were authoritative, and it may even be the Act itself is found wanting in this respect. You can't have a comment or note by any Tom, Dick or Harry which might have been obscurely published without any scrutiny being portrayed as key evidence in a manslaughter case.

I just wish people would not hype Corporate Manslaughter up to something it isn't. What it is is poorly thought-out law which will probably be rarely applied and is unlikely to prove the demon it is claimed to be. I await with interest the outcome of the first case.

A 'gross breach' should take into account all the material facts of the case and not just one particular element. It will be for the jury to decide whether there was a gross breach, assuming a Duty of Care was owed to the deceased.

William

I think this post is in danger of getting bogged down with too much detail. Following HSE ACoPs, guidance and so on will never provide a 'guarantee' that a) an accident will not occur b) you will not get prosecuted. With regards to corporate manslaughter, there are many factors that will be taken into account and I suspect that not following HSE guidance will be the last of an organisations' worries. Most, if not all, serious accidents will include some degree of non-compliance with h&s law and HSE guidance. That is the nature of the beast.

Ray