CMCHA 2007: HSE Corporate Manslaughter Rules

Regulatory citation: Corporate Manslaughter and Corporate Homicide Act 2007 (c. 19)

What Is the Corporate Manslaughter and Corporate Homicide Act?

The Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) created an offence that organisations can commit when a gross failure in the way they manage or organise their activities causes a person's death. The Act came into force on 6 April 2008. The offence is called corporate manslaughter in England, Wales and Northern Ireland and corporate homicide in Scotland.

The Act applies to companies and other corporations, to partnerships, trade unions and employers' associations that are employers, to police forces, and to the government departments and other bodies listed in Schedule 1.

Why the Act Matters

Before 2008, an organisation could only be convicted of manslaughter if a single senior individual, a directing mind, was personally guilty. The Act looks instead at how the organisation as a whole managed its activities.

Core Obligations

1. Understand the Offence (s1(1))

An organisation is guilty if the way its activities are managed or organised causes a person's death and amounts to a gross breach of a relevant duty of care owed by the organisation to the person who died.

2. Know Which Duties Count (s2)

A relevant duty of care is a duty owed under the law of negligence. Section 2 lists the categories, including duties owed to employees and other workers, duties as occupier of premises, and duties connected with supplying goods or services, construction or maintenance work, other commercial activities, and using or keeping plant, vehicles or other things. Whether a duty is owed is a question of law for the judge. Sections 3 to 7 exclude or limit some public functions, such as policing and emergency responses.

3. Meet the Gross Breach Standard (s1(4)(b))

A breach is gross if the conduct falls far below what can reasonably be expected of the organisation in the circumstances. Ordinary carelessness is not enough.

4. Pass the Senior Management Test (s1(3))

An organisation is only guilty if the way its activities are managed or organised by its senior management is a substantial element in the breach. Senior management means the people who play significant roles in making decisions about, or actually managing or organising, the whole or a substantial part of the organisation's activities. This can include senior operational managers as well as directors.

5. Factors the Jury Considers (s8)

The jury must consider whether the organisation failed to comply with health and safety legislation relating to the breach and, if so, how serious the failure was and how much risk of death it posed. It may also consider attitudes, policies, systems or accepted practices that encouraged or tolerated the failure, and relevant guidance.

6. Penalties, Remedial Orders and Publicity Orders (ss1(6), 9 and 10)

On conviction on indictment, an organisation is liable to a fine with no upper limit. On an application by the prosecution, the court can make a remedial order requiring the organisation to remedy the breach, any matter resulting from it that caused the death, and any deficiency in its health and safety policies, systems or practices that the breach indicates. The court can also make a publicity order requiring the organisation to publicise its conviction, specified particulars of the offence, the amount of any fine and the terms of any remedial order. Failing to comply with either order is a further offence punishable by a fine.

7. The Sentencing Guideline

In England and Wales, the Sentencing Council's definitive guideline applies to organisations sentenced on or after 1 February 2016. Fines are set by turnover and seriousness. For a large organisation, with turnover over 50 million pounds, the starting point is 7.5 million pounds for the most serious category, within a range of 4.8 million to 20 million pounds. The guideline says a publicity order should ordinarily be imposed, and courts can go above the ranges for very large organisations.

8. Who Investigates and Prosecutes

HSE cannot prosecute corporate manslaughter. In England and Wales, the police investigate, usually working jointly with HSE on the health and safety aspects under the Work-related Deaths Protocol, and the Crown Prosecution Service (CPS) decides whether to prosecute. Proceedings need the consent of the Director of Public Prosecutions (s17). In Scotland, corporate homicide is prosecuted by the Crown Office and Procurator Fiscal Service (COPFS) and can only be tried in the High Court of Justiciary.

Common Compliance Approaches

Board-Level Ownership

Make health and safety a standing board agenda item, with named senior owners for major risks.

Test That Systems Work in Practice

Audit whether procedures are followed on the ground, not just written. Juries can consider tolerated practices.

Example: Senior Management Failures in Practice

A haulage company's depot managers repeatedly report that reversing lorries pass close to pedestrians in the yard. Senior managers decline funding for segregated walkways. A yard worker is struck and killed. The police and HSE jointly investigate and find the risk was known at regional director level. The CPS charges the company with corporate manslaughter and also brings health and safety charges. On conviction, the court imposes a large fine, a publicity order and a remedial order to redesign the yard.

Related regulations: HSWA section 2 general duties, HSWA section 3 duties to non-employees, HSE RIDDOR.

Note: The Act extends to the whole of the United Kingdom. The offence is corporate homicide in Scotland, where prosecutions are brought by COPFS. The sentencing guideline described above applies in England and Wales. Always check the current legislation and guidance.

Frequently Asked Questions

Can directors be convicted of corporate manslaughter?

No. Section 18 rules out individual liability, including for aiding or abetting the offence. Individuals can still face gross negligence manslaughter (culpable homicide in Scotland) or health and safety charges, such as under section 37 of the Health and Safety at Work etc. Act 1974.

Can an organisation face health and safety charges as well?

Yes. Under section 19, a conviction under the Act does not prevent a conviction for a health and safety offence arising from the same facts, if that is in the interests of justice.

What was the first conviction under the Act?

Cotswold Geotechnical Holdings was convicted in 2011 after a geologist died when a trial pit collapsed. The company was fined 385,000 pounds.