New corporate killing legislation will make it easier to prosecute companies and senior managers. David Faithful explains
Fleet managers will recall the somewhat chequered history of the proposed legislation on corporate killing.
The legislation was intended to simplify the confused position which developed through previous attempts to prosecute companies for manslaughter using the law relating to gross negligence manslaughter.
Notwithstanding a large number of prosecutions, very few proved successful due to the inability to identify an individual who was closely linked to the negligence which resulted in the fatality.
More often than not the successes were against the smaller companies where the management structure was clear.
The concept of corporate killing where the need to identify the "negligent" individual has been abandoned and replaced with a new proposed offence of corporate manslaughter.
This will build upon the existing legislation for gross negligence manslaughter, but making it easier to prosecute companies.
The proposed Bill, if enacted in its present form after the consultation period has ended in June, will remove the need to find a senior individual personally guilty of gross negligence manslaughter.
Instead, a corporation could fall foul of the new offence by reference to existing law, where its failure to discharge the duty of care falls far below what can be reasonably expected in the circumstances.
The new offence will stand-alone. It will complement rather than replace existing health and safety offences.
It is proposed that individual directors will not be liable for the new offence neither will they be liable for aiding or abetting the offence, a director or senior manager could still be prosecuted under the present manslaughter law or for health and safety breaches. In summary, the new offence will:
When will a duty be owed?
The test of management failure criteria will focus on the way in which a particular activity is being managed. If a company has not carried out a risk assessment or has done so but is just paying lip service to it, then this could be construed as a failure to manage.
It is proposed that the responsibility to manage will fall on senior directors and managers; as a consequence, it is likely that a fleet manager will be regarded as being at too lowly a level to have an impact on the management of an organisations activity.
That said, if it can be demonstrated that the fleet manager was undertaking a senior role then this presumption may be reversed.
In addition there is a second tier of responsibility for individuals who have a "significant role".
These are individuals whose management responsibilities bear on the organisation as a whole or a substantial part of it.
The phrase "significant" is intended to capture those managers whose role in management terms is decisive or influential. There is no doubt that some fleet managers will fall within this definition.
Although the new offence is intended to target corporations, individuals may be prosecuted for a number of offences, including: gross negligence manslaughter, and under health and safety law where it can be shown that their personal conduct amounts to an offence.
One is reminded of cases where a fleet manager requires drivers to drive at excessive speeds to comply with deadlines, to carry on driving when fatigued, to use mobile phones while driving or expects them to falsify driving records.
Where a fatality occurs involving an occupational driver, the management of that driver's activities will be compared to existing health and safety law and guidance to establish whether a breach has taken place.
We do have guidance in the shape of the HSE guide to managing work related road safety. The guidance can be used by both the civil and criminal courts as the benchmark of what is reasonable conduct when considering whether a breach has taken place.
Like it or not, unless the substantial recommendations contained within the guidance are being followed by senior managers, the impact of a fatal accident is likely to be felt in the boardroom
The penalty for corporate manslaughter will be an unlimited fine. The larger the organisation and the more public outcry resulting from the incident the larger the fine will be.
Drawing on the EU approach, it is likely that fines for multinational corporations could run into six figures.
In the event that a director or manager is prosecuted individually for gross negligence manslaughter or health and safety offences both imprisonment and fines are available to the courts.
Fleet managers will be aware of the memorandum of understanding that has been operating between the police and the HSE since the publication of the HSE guidance.
This co-operation will continue, so that the police rather than the HSE will take the lead in referring potential corporate manslaughter offences to the CPS for a decision as to whether or not to prosecute.
I would be surprised if the final version of the legislation is radically different from the draft Bill, bearing in mind the years of consultation that have already occurred. We still do not have any clear idea as to when it will reach the statute books.
What is clear is that we are now on the final lap and the impact on fleet management will soon be seen. IT
' David Faithful is a partner with law firm Clarke Willmott