Conditions for corporate manslaughter/homicide offence to apply

The following conditions need to apply for an organisation to be prosecuted. *** Get a copy of CCA's Guidance to the Act to understand each of these elements in more detail, click here to obtain this .

1. The harm resulting in death must have taken place in the UK (or in its territorial waters, or on a British ship, aircraft or hovercraft). The harm (that results in death) does not need to be a physical injury, it can also be a health impact, from a chemical or germ exposure.
   
   
2. The harm that results in the death must have take place on or after 6 April 2008.
   
   
3. The evidence to substantiate any of the management failures must have taken place on or after 6 April 2008.
   
   
4. The organsation at fault must have been either:
   
   

   •	a corporate bodies (including all private companies, companies incorporated by statute, common law or Royal charter or companies incorporated outside the UK. This includes local authorities, hospital trusts and other government bodies that are incorporated. Parent companies can be prosecuted but not for deaths resulting from the activities of their subsidiary companies
   •	Crown bodies that are mentioned in a schedule to the Act. This includes all government departments and some executive bodies.
   •	Police forces
   •	Partnerships, trade unions and employer organisations (that employ perople)

   
   
5. The responsible organisation must have owed a ‘duty of care’ towards the person who died.
   
   
6. This ‘duty of care’ must be of a particular kind – falling into the categories set out in section 2 of the Act. In summary these must relate to the responsibilities of :
   
   

   •	employers and occupiers towards their staff and those who enter their land, premises etc;
   •	manufacturers towards those who buy their products;
   •	transport operators towards their passengers;
   •	hospitals towards their  patients;
   •	local councils in the provision of particular services towards those receiving the services;
   •	other organisations involved in the supply of goods or services towards those receiving them;
   •	commercial organisation to those affected by their activities.
   •	organisations involved in construction or maintenance operations towards those affected by their activities;
   •	organisations involved in the keeping of any plant, vehicle or other thing towards those affected by this;
   •	organisations involved in protection of those in state custody (but this will only apply in three to five years time, 2011 to 2013.)

   
   
7. The ‘duty of care’ must not fall into one of the exemptions contained in the Act. In summary these are:
   
   

   •	a public authority, where the death is a result of high level policy decision making involving the allocation of resources;
   •	a death which is the result of activities that only the state can uniquely perform (i.e granting of certain licenses, diplomacy etc.). This exemption does not include a death of a member of staff or involves the organisation’s responsibilities as an occupier;
   •	ambulance or fire or rescue services, where the death is of a member of the public and is the result of a response to emergency services (other than the provision of medical care) ;
   •	where the death is the result of the MOD undertaking any military operations (or preparatory activities or hazardous training activities in relation to them) , even if the death involves a soldier;
   •	where the death is the result of a public authority undertaking statutory inspections, a local authority undertaking its child protection responsibilities or a probation board undertaking its supervisory responsibilities -  and the death is not that of a member of staff or does not relate to occupier responsibilities;
   •	where the death is the result of the police force (or other public authority undertaking these functions) involving any policing or law enforcement activities – and the death is not that of a member of staff or relates to occupier responsibilities .
   There are few exemptions for commercial organisations unless the death is the result of it carrying out activities whilst functioning as a public authority (in which case it has the same exemptions as public authorities have above), or if the commercial organisation is carrying out ambulance services on behalf of an NHS Trust etc, and a death takes place in the course of responding to an emergency

   
   
8. There must be a failure in the way in which the organisation was managed or organised which amounted to a gross breach of the duty of care. This requires evidence that the failure fell “far below what can reasonably be expected”. In assessing this, the jury must consider the seriousness of the breach of health and safety law and the extent to which it posed a risk of death. The Jury can also consider the extent to which the attitudes, policies, systems of accepted practices encouraged the failure, and whether there was any breach of health and safety guidance.
   
   
9. A substantial element of the management failure must have been at a senior management level. This is defined as the “persons who play significant roles in (i) the making of decision about how the whole or a substantial part of its activities are to be managed or organised, or (ii) the actual managing or organising of the whole or a substantial part of those activities.”
   
   
10. The failure must have caused the death. This need not be the only cause of death. One should be able to say that ‘but for’ the failure in question, the death would not have taken place

Further Points: Investigation, prosecution, sentencing

1. The police will be the main investigators of the offence but will, as now, be supported by health and safety regulators like the Health and Safety Executive. It will be prosecuted by the Crown Prosecution Service in England and Wales, and the Procurator Fiscal Service in Scotland (see chapters 15 and 16)
   
   
2. Private prosecutions can only take place after the DPP has given his or her consent.
   
   
3. Convicted organisations can receive an unlimited fine. The Sentencing Guidance Council will publish towards the end of 2008 guidance to the courts in relation to the level of fines they can impose. The Panel, that advises the Council, has proposed fines of between 2.5% and 10% of an organisation’s turnover (see chapter 17).