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CCA Responses to Consultation Documents
Part of Section 3 of the CCA Response to Home office Proposals to Reform the law of Manslaughter

Directors and the new offence of Corporate Killing

3.54 The Home Office has proposed two possible legal reforms which - though not concerning the new individual "manslaughter" offences - would have a direct impact upon company directors. This relates to the proposed offence of "corporate killing" which is itself discussed in section five below..
3.55 Option of Disqualification: The Home Office is proposing that a director or other company officer "who could be shown to have had some influence on, or responsibility for, the circumstances" which resulted in a company being convicted for its proposed new offence of corporate killing, "should be subject to disqualification from acting in a management role in any undertaking carrying on a business or activity in Great Britain." It is proposed that the "ground for disqualification would not be that of causing death but of contributing" to company's "management failure" which resulted "in the death". It is suggested that there would, in most cases be separate (presumably civil) proceedings taken against the director, once the company had been convicted of the offence.
3.56 Under the Company Directors Disqualification Act 1986, directors can now be subject to a disqualification order if he has been convicted of an "indictable offence" concerned with the "promotion, formation, management, or liquidation of a company".(i) At present, therefore, a company director convicted of either manslaughter or a health and safety offence(ii) could be subject to disqualification. What the Home Office is now proposing is that the director could be disqualified even when he has not been convicted of any offence - though there would have to be evidence, that satisfied the civil law burden of proof, that the conduct of the company director "contributed" to the "management failure" committed by the company.

A new Offence?: The Home Office document also contains a suggestion - upon "which the government has reached no firm view" - that there should be an additional criminal offence which would allow the prosecution of a director who "substantially" contributed to the offence committed by the company. Such an offence would, in effect, be intermediate between:

  • a regulatory offence - where it is necessary to prove that a health and safety offence committed by the company is the result of "neglect, consent or connivance" on the part of a director or manager(iii) ; and
  • one of the individual new homicide offences

It is not entirely clear whether the Home Office is suggesting that the second option of a new offence would displace its disqualification proposal, or whether it is proposing one of the two options below:

  • that the same evidence about the conduct of a director could be used either as a foundation for prosecution or/and as the basis for disqualification proceedings; or
  • that there would be a clear distinction between the levels of evidence required for disqualification on the one hand and prosecution on the other. For example, is it being suggested that disqualification could take place simply on the basis that the director "had some influence on or responsibility for" the company's management failure, but that prosecution could only take place if there was evidence of a higher level of contribution (i.e. a "substantial" or "significant" contribution).
3.59 The Centre's Views: In our view, for reasons set out in paragraphs 3.4 to 3.19 above, that it is crucial to focus on the conduct of company directors - since it is they who control companies. Even if the Government imposed safety duties upon directors, permitting prosecutions against them when they have caused death through reckless or grossly careless omissions, the number of prosecutions is unlikely to be very high. The most serious culpable conduct would be required of directors before they could be prosecuted. Safety duties and manslaughter prosecutions would therefore only effect the most culpable company directors.

It is therefore important that sanctions are available against company directors who are "culpable" - in that their conduct has directly resulted in the safety failure of their company - but not culpable enough to allow for a homicide prosecution. We support the view set out in the Home Office document that:

"the public interest in encouraging officers or undertakings to take health and safety seriously is so strong that officers should face criminal sanctions in circumstances where, although the undertaking has committed the corporate offence, it is not (for whatever reason) possible to secure a convictions against them for either of the individual [homicide] offences."

It is crucial that company directors and others at the top of a company are appropriately deterred from putting the lives of people at unnecessary risk. It is always going to be difficult - because of the nature of seriousness of the offence - to prosecute individual managers and directors for homicide offences, and it is therefore important that conduct, that does not merit prosecution for the individual homicide offences, but is still seriously culpable, can result in a prosecution for an offence with proper stigma and penalties attached.


It is not enough in our view for such a person to be subject to civil proceedings for disqualification. Apart from anything else, this could otherwise have rather bizarre results. It could mean that where a director's "consent, connivance or neglect" has resulted in his company "failing to comply with a duty", the director could be prosecuted under the HASAW Act 1974 (and indeed be subject to imprisonment if the Government amends the act as it says that it intends to(iv) ), but where he contributes to his company causing the death of a person through gross carelessness, he will only be disqualified.

In our view, a company director should be able to be prosecuted if he has "significantly"(v) contributed to his company's "management failure". Disqualification in civil proceedings is not enough.

3.62 What about the Home Office's disqualification proposal? In addition, to the new criminal offence, should a company director be able to be disqualified even though he has not committed any offence? On balance, we think that this option should also be available. It should be noted that this option would only be available in a limited set of circumstances: where (a) a death has taken place; (b) it is the result of gross carelessness on the part of the company's management and (c) that the director had some responsibility for the management failure. No disqualification could take place without a death and a corporate conviction for a homicide offence. However it would be important, to avoid confusion with the criminal offence, for this sanction to be available at a lower standard of proof than the criminal offence. Proof of "significant contribution" should not be necessary.

(i)Health and safety offences are "indictable" offences and involve the "management" of a company. Therefore the HSE can at present seek a disqualification order against a director, if he has been convicted of an offence under section 37 of the Act.
(ii)Under section 37 of the Health and Safety at Work Act, for example
(iii)section 37 of the HASAW Act 1974
(iv)See DETR, "Revitalising Health and Safety: A Strategy Statement"
(v)It is our view that the wording of the offence should be clear and not contain the words of "neglect, consent or connivance".

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Page last updated on June 9, 2003