HOWZAT

The kinds of activities that would fall under the scope of the Act are broadly defined and include duties owed to employees or others working within the organisation. It would also include those duties owed as occupiers of premises, or where goods or services are supplied, or where construction or maintenance is being carried out and where machinery or vehicles are used or stored.

Who are senior management?

Perhaps the most crucial aspect of the act is the targeting of senior management. In a small company, senior management will often be the director who has a hands-on relationship with the day-to-day activities of the business. In a large organisation identifying who senior management are, may be more difficult. The Act defines them as people who play a significant role in the decision-making process around how the company's activities are managed and organised, or who actually manage the whole or a substantial part of the organisation‘s activities.

What is not covered by the Act?

There are some important exemptions. Broadly, these cover public policy decisions and circumstances where what is deemed exclusively public functions are carried out. For instance, strategic decisions by a health trust in relation to the provision of new drugs would be likely to fall outside the scope of the Act. Crown immunity will not apply to the offence but military combat operations, police and law enforcement operations dealing with terrorism and violent disorder are exempt as are responses by a range of emergency services. After heated debate, which threatened to halt the progress of the Bill, deaths in custody are now included but child protection and probation functions are not.

What are the sanctions?

There are no prison sentences available as the offence is directed not at an individual but at an organisation. Where an organisation is guilty of corporate manslaughter, the penalties are unlimited fines, the imposition of a remedial order, which forces changes to culture and practice, and importantly a publicity order. This may prove to be the most useful deterrent for slapdash organisations, as it requires the naming and shaming of those who fall foul of the new law.

Will it make any difference?

It is likely to be of some benefit because it is closely linked with health and safety legislation and those affected by the new law will be reviewing their policies and procedures to safeguard themselves in the event of a tragedy. As a result health and safety - which up until now has tended to be viewed as a less potent force within the criminal law - will have its status enhanced. There are though important concerns about how senior management will be defined and how, in practice, the courts will interpret precisely what is meant by a relevant duty of care. While the Act goes farther than the Government originally intended, including as it does deaths in custody, it fails to cover a number of important areas. Campaigners for the new law will undoubtedly see it as a step forward but for the families of the hundreds of victims of corporate killing, the ultimate sanction would be imprisonment of erring managers. No such remedy is available, although individuals can be liable under the common law.

The author is a lecturer in law, University of Wales, Newport Business School

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