Government Proposals to Implement Corporate Killing Proceedings

The Government announced yesterday (20 May 2003) its intention to introduce a draft bill to reform the law of corporate manslaughter. For a number of years, there has been a general perception that existing criminal laws are inadequate. This is because criminal law is designed to prosecute individuals who have the necessary intention to commit criminal acts not legal corporations which do not physically exist.

In May 2000, following a Law Commission review on the current law of involuntary manslaughter, the Home Office published a consultation document setting out proposed reforms. Although it is unclear if the Government proposes to implement any of these reforms, it is thought that the draft bill will be based on these proposals.

The consultation document proposed three new potential offences that are relevant to individuals. These are:

1. Reckless killing.
2. Killing by gross carelessness.
3. Killing where the intention is to cause only minor injury.

Reckless Killing

This offence would occur where:

- an accused's conduct causes the death of another;
- the accused is aware of the risk that the conduct will cause death or serious injury; and
- it is unreasonable for the accused to take the risk having regard to the circumstances as he knows or believes them to be.

This offence could be committed by anyone including company managers and directors. If adopted, it will carry a maximum penalty of life imprisonment.

Killing by Gross Carelessness

This offence would occur if:

- the accused's conduct causes the death of another;
- the risk that the conduct would cause death or serious injury would be obvious to a reasonable person in the accused's position;
- the accused is capable of appreciating the risk at the material time but did not in fact do so.

Additionally, the prosecution would be required to show that:

- the accused conduct falls far below what can reasonably be expected in the circumstances; or
- the accused intends by his conduct to cause some injury or is aware and unreasonably takes the risk that it may do so, and the conduct causing (or intended to cause) injury constitutes an offence.

This offence would carry a penalty of up to ten years imprisonment.

Killing Where the Intention is to Cause Only Minor Injury

Such an offence would occur where:

- an accused's conduct causes the death of another;
- the accused intended to cause some injury or was reckless as to whether the injury was in fact caused and
- the accused's conduct constitutes an offence.

Because this offence requires an intention to cause injury or a recklessness to the result, it is unlikely that it will be used in relation to workplace fatalities. The suggested maximum penalty for an offence of this nature is between five and ten years.

In addition to the above three recommendations for prosecutions of individuals, a new offence of corporate killing is proposed to replace the current law of corporate manslaughter. The new offence of corporate killing will require that:

- a company has caused the death of a person. In this regard, the death will be regarded as having been caused by the business if it was caused by a management failure (the way in which business activities were managed) failed to ensure the health and safety of employees or third parties;
- the company's conduct has fallen far below that which could be reasonably expected.

This means there will no longer be a need to show that the controlling mind of the company was capable of appreciating any risk. Nor will it be necessary to show that one single individual was at fault. Instead, it focuses on the failure of management systems in controlling workplace risks. It is proposed that such offences will only be heard in the Crown Court. There will be an unlimited financial penalty (which mirrors the sanctions under the Health and Safety at Work Act).

Summary

So far, the press releases merely state that the legislation will be targeted at companies themselves. This hints that the reforms will only address the issue of corporate killing, but it may go further to include a reform of involuntary manslaughter laws, which may make it easier to prosecute directors. The Government has announced that the timetable for the legislation will be finalised and published in the autumn.

If the Government's intention is to merely add the offence of corporate killing to the statute books, it is debatable whether a full scale review of criminal law was necessary to achieve this. Arguably, it could have been achieved merely by amending the Health and Safety at Work Act and widening the Courts sentencing powers.
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