Corporate manslaughter clarified

Responding to the Home Affairs and Work and Pensions Committees' recommendations on the draft Corporate Manslaughter Bill, the government has resisted calls to broaden the Bill's scope but has agreed to clarify the detail in some areas.

Among the areas to be clarified are the definition of the senior manager test and the management failure test, which the government accepts have been widely misunderstood. It has retained the concept of duty of care but has rejected an additional offence of secondary liability for corporate manslaughter against individuals personally responsible for an organisation's failings. By limiting its review to those areas which needs clarification, the Bill should now stand a better prospect of passing into law.

The government has, however, recognised the need to strengthen individual responsibility and accountability for health and safety management and this whole area is now under review.

Individuals, particularly those at director and manager level, remain at risk of personal prosecutions and imprisonment under existing manslaughter laws and also prosecutions and fines under health and safety laws. Individual manslaughter offences are, however, to be reviewed as part of the on-going review of homicide law. The Health and Safety Council has recently asked the Health and Safety Executive to look at the effectiveness of enforcement under s37 of the Health and Safety at Work Act and the measures in place relating to directors' duties. The government has also agreed to look at the interaction between director disqualification and the new corporate manslaughter offence.

Given the government's emphasis on individual accountability for health and safety, it is likely that we will see the implementation of statutory health and safety duties and the bolstering up of both the laws and enforcement against individuals for health and safety offences as part of a wider review on individual liability.

The authorities will also be looking to use the new corporate manslaughter offence to drive home the message of accountability for serious health and safety incidents leading to death.

Insurance cover for payment of fines is not available, as it is against public policy. Legal costs can be very substantial in these types of cases. More than ever, brokers whose clients include organisations and individual directors and managers, will need to ensure their clients have appropriate cover for defence costs for legal representation, in the event that they face corporate killing or other health and safety investigations and prosecutions.