English law had no law specifying how a company could be made criminally liable for deaths caused by its activities until this summer. All that changes with the new act, which comes into force on April 6, 2008 and which aims to make it easier to prosecute companies for manslaughter. There is likely to be a desire to make the new offence work and to secure convictions where the old law failed to do so. A company will be guilty of corporate manslaughter if its activities cause a person's death because of the grossly inadequate way in which the company's activities are managed or organised.

Trial will be by jury. If found guilty, a company may be subject to an unlimited fine, a court order to remedy a particular failing within the company and also, to many eyes the most brutal punishment, an order to require the company to publicise the offence in a manner specified by the court. The new act creates a criminal offence: to be found guilty means punishment-the rationale of orders against a company found guilty is not to compensate those affected but to use punishment as a deterrent.

For an offence to be committed, there must be a gross breach of a relevant duty of care. That means the organisation must have owed a duty of care to the deceased as an employer; an occupier of premises; or in connection with the supply of goods and services, of construction or maintenance operation, of any other activity on a commercial basis, or the use or keeping of any factory, vehicle or other thing.

Second, the breach of the duty of care must be "gross"-that is, conduct which falls far below what can reasonably be expected of the organisation in the circumstances. In order to decide this, the jury must consider:

1.     Whether the company had failed to comply with any health and safety legislation.
2.     The safety culture of the company; and
3.     Any health and safety guidance which relates to the death

In assessing any failings, the new act specifically requires consideration of whether or not the way in which senior management organised the company's activities created those failings. Senior management means those who play significant roles in making decisions about how the whole or a substantial part of the organisation's activities are managed or organised, or who are actually involved in the managing or organising.
Essentially, both strategic and operational managers will be considered to be senior managers.  This very much links into the importance which the new act places upon "the safety culture" within a company.

There is therefore still a window of opportunity (should one be needed) to take action to minimise the risk of liability under the new offence before it comes into effect next year. Consider the following questions:

1. How effective are your health and safety systems?
2. Are they rigorously followed or are breaches tolerated?
3. Are you complying with all health and safety legislation that is relevant to your organisation?
4. What are the health and safety attitudes, policies, systems or accepted practices within your organisation?
5. Who within your organisation constitutes "senior management"? Do they understand their responsibilities and liabilities?

Field Fisher Waterhouse LLP (www.ffw.com)

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