Corporate manslaughter law and schools

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In April 2008 a new Corporate Manslaughter law finally found its way onto the statute book.  It will no longer be necessary to prove that an individual who could properly be identified as the directing mind of an organisation is guilty of gross negligence.  Instead liability for the new offence depends on a finding of gross negligence in the way in which the activities of the organisation are managed. 

Under the new law an organisation must owe a "relevant duty of care" to the victim.  In particular this includes duties owed to employees, as an occupier of premises, in the supply of goods or services or in the use or keeping by the organisation of any plant, vehicle or other things.  The explanatory notes to the Act make it clear the new law will apply to both public and private organisations.

The organisation must be in breach of that duty as result of the way in which the activities of the organisation are managed or organised- the management failure. A substantial element of that breach must lie in the way senior management managed or organised its activities. The failure must be gross in that it falls far below what could reasonably be expected.

The law defines senior management as anyone who plays a significant role in the making of decisions about how the organisations activities are to be managed or organised; or in the actual managing of those activities. This covers both those in the direct chain of management as well as those in strategic or regulatory compliance roles.

In schools it is likely to be the local authority and governing body which sets the strategic agenda in terms of the schools management and operational mangers such as head teachers and heads of department who are engaged in actually managing the schools activities.

No individual can commit an offence under the new legislation. However the existing laws relating to manslaughter and offences health and safety legislation provide for individual liability in any event and remain unchanged. Individual prosecutions have been and can still be brought against head teachers for example under Section 7 the Health and Safety at Work Act 1974 alleging a failure to take reasonable care for staff or children or against senior managers under Section 37 of the 1974 Act.

When considering any failure under the new law the jury must consider to what degree the organisation was in breach of its obligations under health and safety legislation and how much of a risk of death that failure posed. It may also consider the extent to which the evidence shows that there were attitudes , policies, systems or accepted practices within the organisation that were likely to have encouraged any such failures or to have produced tolerance of it and regard can be had to any health and safety guidance that relates to the breach.

The Ministry of Justice “Understanding Corporate Manslaughter and Corporate Homicide Act 2007 “ guidance note states

“ [The Act] is an opportunity for employers to think again about how risks are managed. The offence does not require organisations to comply with new regulatory standards. But organisations should ensure that they are taking proper steps to meet current legal duties….”

This highlights the point that there already exists significant legislation which deals with health and safety and with which schools have had to comply for many years. The new Act builds on that and is intended to complement and not replace such legislation. Likewise those who prior to the commencement of the new law were complying with health and safety legislation and guidance should have nothing to fear.

The sanctions following conviction are significant. This includes an unlimited fine, a Remedial Order which requires the organisation to address the deficiencies in health and safety management that lay behind the breach and a Publicity Order which will mean that the organisation has to publicise details of the offence.

Whilst each case will turn on its own facts the definition of senior management is broad enough to include those in senior operational management and those carrying out monitoring or strategic roles. The strategic approach of a school to health and safety including its arrangements for risk assessment and monitoring and auditing its processes will be under particular scrutiny.

On the basis the prosecution must call evidence of the failure of senior management it is likely during any corporate manslaughter investigation that the police will wish to interview members of the local authority, governors and staff. If a school were prosecuted such individuals could then become embroiled in giving evidence at any public trial. The potential reputational damage of such an exercise both corporately and individually is all too obvious.

With a view to avoiding the serious repercussions of a prosecution schools may wish to satisfy themselves that they have reviewed the following:-

• Health and safety guidance applicable to the operation of their school.
• Ensuring health and safety management systems identify proper policies and procedures and ensuring that roles and responsibilities are understood
• The structures in place to identify risks and put in place procedures to manage them effectively
• Reporting procedures to the local authority or governors – in particular on matters relating to health and safety
• Systems for ensuring recommendations from serious untoward incidents are implemented
• Systems for recruitment of competent staff, ongoing training and supervision
• Ensuring job descriptions specify relevant health and safety responsibilities
• The health and safety culture within the school, with a view to encouraging a positive and responsible approach to health and safety. In particular noone should take on health and safety responsibilities that they are not competent to undertake.

Should the worst happen and there be  a fatality schools should be in a position to justify their health and safety procedures and policies.  As indicated above a clear audit trail is vital to this.  Likewise schools should expect a significant investigation. Following a fatality both the Health and Safety Executive and Police will be involved in any investigation and will expect to speak to staff at all levels and examine relevant paperwork.  The question of legal representation of the organisation and individuals inevitably arises and the school should be prepared to act quickly to ensure that the investigation is handled sensitively and carefully but also to ensure that as far as possible the school puts forward a robust defence of their actions and policies.

An investigation by the[police and HSE following a fatality can take many years to conclude- upto 5 years or more from accident to trial. Likewise the process of investigation may be ongoing alongside an internal investigation, internal or external disciplinary proceedings, a civil claim for compensation and subject to a decision to prosecute for manslaughter an Inquest. It is recommended that schools put in place a strategy to deal with any such investigation which should also consider the question of funding taking into account the fact that different parties may need to be separately represented throughout the process.

In conclusion whilst the Act does not require organisations to comply with new regulatory standards it is a warning to those who are not complying with health and safety laws and guidance that the consequences can be very severe.

Andy Hopkin is a regulatory law expert at law firm Browne Jacobson