The Corporate Manslaughter Bill 2016 (‘the Bill”) recently published will create the indictable offence of “corporate manslaughter” by an undertaking and will also create the indictable offence of “grossly negligent management causing death” by a high managerial agent of the undertaking. A copy of a link to the Bill is located here.It is proposed that the Bill will reform the law on corporate manslaughter to ensure that undertakings or persons can be held accountable when deaths of workers are caused by neglect of workplace health and safety whether it is through established bad practice or mismanagement. As outlined in the explanatory memorandum, the Bill is based on the Law Reform Commission Report on Corporate Killing of October 2005 which recognised that current legislation was deficient and recommended that a new offence of corporate manslaughter be created.
Corporate Manslaughter
Section 2 of the Bill sets out a definition of corporate manslaughter.
It provides at Section 2(1) that the offence of “corporate manslaughter” is caused “Where an undertaking causes the death of a human person by gross negligence....”
Section 2(2) provides that an undertaking causes death by gross negligence where—
(a) it owed a duty of care to the deceased person,
(b) it breached that duty of care in that it failed to meet the standard of care in
subsection (3),
(c) the breach of duty involved a significant risk of death or serious personal harm,
and
(d) that breach caused the death of the person.
Under subsection (3) the standard of care required of the undertaking is “to take all reasonable measures to
anticipate and prevent risks to human life, having due regard to the size and circumstances of the undertaking”
In determining whether an undertaking owed the deceased person a duty of care, the court will have regard to the common law or statutory duties imposed on the undertaking and in particular “shall have regard to whether the undertaking owed a
duty as—
(a) an employer or subcontracted employer,
(b) an occupier of land,
(c) a producer of goods, or
(d) a provider of services“
Under subsection(5) in assessing whether the undertaking breached the standard of care in subsection (3), the court shall have regard to any or all of the following:
(a) the way in which the activities of the undertaking are managed or organised by its
managerial agents;
(b) the allocation of responsibility or activities within the undertaking;
(c) the procedural rules of the undertaking;
(d) the policies of the undertaking;
(e) the training and supervision of employees of the undertaking;
(f) the response of the undertaking to previous incidents involving a risk of death or
serious personal harm;
(g) the stated and actual goals of the undertaking;
(h) the adequacy of the communications systems within the undertaking including
systems for communicating information to others affected by the activities of the
undertaking;
(i) the regulatory environment in which the undertaking operates, including any
statutory duties to which the undertaking is subject;
(j) any assurance systems to which the undertaking has subscribed;
(k) whether the undertaking was operating within the terms of a contract or licence
made or granted under legislation.
Grossly Negligent Management Causing Death
Section 3(1) of the Bill provides that where an undertaking has been convicted of corporate manslaughter and a high
managerial agent of the convicted undertaking—
(a) knew or ought to reasonably have known of a substantial risk of death or serious
personal harm,
(b) failed to take reasonable efforts to eliminate that risk,
(c) that failure fell far below what could reasonably be expected in the
circumstances, and
(d) that failure contributed to the commission of the corporate offence,
then that agent shall be guilty of an offence called “grossly negligent management causing
death”.
In determining whether a “high managerial agent” ought to have known of the risk, the court will look at the actual and stated responsibilities of the managerial agent.
In assessing whether a high managerial agent failed to make reasonable efforts to eliminate a risk, the court shall have due regard to the actual responsibilities within the undertaking of the high managerial agent and whether it was within the power of the high managerial agent to eliminate the risk.
If under Section 3(4) the high managerial agent did not have the power to eliminate a risk then he or she will have failed to take reasonable measures to eliminate the risk if he or she failed to pass on information of the risk to others within the undertaking who were in a position to eliminate the risk.
Dissolution of the Undertaking
The dissolution of the undertaking wont prevent a prosecution of high managerial agents of the company for grossly negligent management causing death under subsection (5).
Prosecution and Penalties
Section 4 provides that prosecutions will be on indictment and Section 5 outlines the penalties applicable to an undertaking convicted of corporate manslaughter and to a high managerial agent of a convicted undertaking who is convicted of grossly negligent management causing death.
Section 5(1) provides that undertaking convicted of corporate manslaughter is liable to a fine and a high managerial agent convicted of grossly negligent management causing death is liable to a fine or imprisonment for a term not exceeding 12 years, or to both.
Pre-Sentencing Report
Section 6 allows the court to order a pre-sentencing report before the sentencing of a convicted undertaking which will allow the court to take account of a range of issues when sentencing, including the previous financial means of the undertaking as well as its compliance with its legislative duties.
Remedial Order
Section 7 allows the court to impose a Remedial Order on the convicted undertaking together with a fine to remedy the circumstances that led to the occurrence of the corporate manslaughter.
Community Service Order
Section 8 allows the court to impose a Community Service Order on the convicted undertaking together with a fine in order to allow the convicted undertaking an opportunity to contribute to the community it has wronged in a constructive manner.
Adverse Publicity Order
Section 9 allows the court to impose an Adverse Publicity Order on a convicted undertaking in addition to a fine where it deems appropriate.
Disqualification of a High Managerial Agent
Section 10 allows for the disqualification of a high managerial agent who has been convicted of grossly negligent management causing death from acting in a management capacity in an area specified by the court for a period not exceeding 15 years.
Section 10(2) provides that a person found to be in breach of a disqualification order is guilty of an offence and will be liable to a fine not exceeding €5,000,000 or imprisonment on indictment for a term not exceeding 2 years or to both.
In imposing a fine on a person convicted of an offence under this section, the court must take into account the person’s financial circumstances, and may inquire into that person’s financial circumstances in so far as is practicable.
Separate Legal Personality
Section 12 allows for the principle of separate legal personality to be disregarded by the court where an undertaking has dissolved and reformed and the court is satisfied that the purpose of that dissolution and re-formation was to avoid criminal liability for corporate manslaughter of grossly negligent management causing death.
We will keep our readers updated of the progress of the Bill including any amendments arising.
