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Corporate Manslaughter and Homicide Act 2007- Audit Your Procedures

The Corporate Manslaughter and Homicide Act 2007 came into force on 1 April 2008. This Act introduced a new offence of Corporate Manslaughter (Corporate Homicide in Scotland) which applies to organisations that cause the death of an individual by way of a gross breach of their Duty of Care.

The Duty of Care is the same as that set out by the common law of negligence but for lettings agents or corporate landlords would certainly include their basic requirements to ensure that a property is safe and that a landlord’s Gas Safety Certificate has been obtained.

The offence is triable in the High Court before a jury. The jury must consider whether the breach of the Duty of Care is one which falls “far below what can reasonably be expected of the organisation in the circumstances”. Factors to consider will include breaches of any legislation designed to protect health and safety and the seriousness and risk of death posed by such breaches and whether “there were attitudes, policies, systems or accepted practices within the organisation that were likely” to have encouraged or tolerated the breach of Duty that led to the death.

It is important to note that the offence is only committed if it can be shown that it was the manner of organisation and management of an organisations activities by its senior management that led to the death. In this case senior management is defined as those responsible for making or implementing decisions as to the management or organisation of the whole or a substantial part of the organisations activities.

For many organisations it will be the attitude and policy considerations that will cause the greatest concern. However, there is no requirement to spend excessive time dealing with individuals as long as the senior management is making the right decisions and promoting the right policies. However, the definition of ‘senior management’ could be very wide. It will certainly include board members, lettings directors, operations managers, and possibly branch managers. It should not be forgotten that the Act applies equally to partnerships and this form of operation provides no protection. Sole traders were, of course, already liable under the more common charge of manslaughter by gross negligence.

The key point to protection is the need for all organisations to ensure that they have clear, written policies in respect of all health and safety matters, whether these are in connection with their internal or external relations and further to ensure that staff are fully aware of and trained in these policies. Finally, it is important that no ‘culture’ of ignorance of the policies is promulgated by the senior management and that any breach of policy is dealt with swiftly and seriously.

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