What needs to be proved: the Legal Test

In order for an organisation to commit this offence

•	it must owe a relevant duty of care to the person who died;
•	the way in which it’s activities were organised or managed by its senior managers must have: - caused a death of a person; - been a gross breach of the duty of care

Relevant duty of care
A ‘duty of care’ is a legal concept within the civil law of negligence used to determine whether or not an organisation is liable to pay compensation.
There can be no liability to pay compensation unless it can be shown that the organisation had a duty to do something in relation to the injured or deceased person – that is to say it had a ‘duty of care’ towards the person.

It is relatively well established in what circumstances an organisation owes a ‘duty of care’. Such duties include the duties owed by employers to employees, transport companies to managers, manufacturers to the users of products and the duties of construction companies and other service providers to the public.

The Government has introduced the concept of ‘duty of care’ in the manslaughter bill as this is a current requirement of the offence of manslaughter. Therefore, it says,

“organisations will be clear that the new offence does not apply in wider circumstances that the current offence.”

Requiring there to be a duty of care means an organisation can only be prosecuted if legal duties upon the organisation to have taken some action already exists.

However, the Bill states that a prosecution can only take place if there is a ‘relevant’ duty of care – which is defined in section 4 of the bill. Most relevant ‘duties of care’ appear to be included in this section, but those that arise out of public policy decision making and certain activities involving the detention of prisoners are excluded (see section on who can commit this offence).

In effect, this means that, for the purposes of this bill, a public body does not owe a duty of care to those who may affected by its public policy decision-making; and an organisation involved in lawful detention on behalf of the state does not owe a duty of care to those die as a result of its activities. As a result no manslaughter prosecution can take place (see section on Crown bodies)

The ‘way’ organisation is organised and managed
Assuming there is a duty of care, the next consideration is ‘the way’ in which organisation’s activities are organised and managed. The Government states:

“Drawing on the Law Commission’s proposals, the new offence would be based on failures in the way an organisation’s activities were managed or organised – referred to as a “management failure” – an approach that focuses on the arrangements and practices for carrying out the organisation’s work, rather than any immediate negligent act by an employee (or potentially someone else) causing death.”

Senior Managers
However not every ‘management failure’, however serious, can result in a prosecution against the organisation. For it to be relevant to this offence it must be one that is the responsibility of a ‘senior manager(s)’. If the way in which a company is organised or managed is extremely poor, but this is the result of the conduct of individuals who are not ‘senior managers’, then the company will not be able to be prosecuted for this offence.

Section 2 of the Bill defines who is a senior manager. Managers must have a ‘significant’ role over at least a ‘substantial’ part of the organisation’s activities. The Bill document states:

“The term “significant” is intended to capture those whose role in the relevant management activity is decisive or influential, rather than playing a minor or supporting role. What amounts to a “substantial” part of an organisation’s activities will be important in determining the level of management responsibility engaging the new offence. This will depend on the scale of the organisation’s activities overall. It is intended to cover, for example, management at regional level within a national organisation such as a company with a national network of retail outlets, factories or operational sites. And where an organisation pursues a handful of activities in roughly equal proportion (for example, a company that has manufacturing, retail and distribution operations), those responsible for the overall management of each division. Levels below this will potentially be covered depending on whether business units can sensibly be said to represent a substantial part of the organisation’s overall activities. The definition will apply with different effect within different organisations, depending on their size. Management responsibilities that might be covered by the offence within a smaller organisation, such as a single retail outlet or factory, may well be at too low a level within an organisation that operates on a much wider scale. This reflects the intention to criminalise under this offence management failings that can be associated with the organisation as a whole, which will capture different levels of responsibility depending on the size of the organisation.”

The government considers that the focus on senior managers:

“ensures that the new offence is targeted at failings in the strategic management of an organisation’s activities, rather than failings at relatively junior levels. Our intention is to target failings where the corporation as a whole has inadequate practices or systems for managing a particular activity. It is in these circumstances that the Government considers it appropriate for liability for causing death to be attributed to the organisation.”

Senior Managers Working Practices
The focus must therefore be on the conduct of senior managers of the organisation and the way in which they organise and manage. The offence is supposed to allow “senior management conduct to be considered collectively, as well as individually”.

The Government however says that:

“this does not mean that we have replaced the requirement to identify a single directing mind with a need to identify several, nor does it involve aggregating individuals’ conduct to identify a gross management failure. It involves a different basis of liability that focuses on the way the activities of an organisation were in practice organised or managed.”

Gross breach
The way in which the organisation has been organised or managed must be “a gross breach of the duty of care”. The Bill defines this as “conduct falling far below what can reasonably be expected of the organisation in the circumstances”.

In determining whether or not this is the case, the jury is required to consider whether the organisation “failed to comply with any relevant health and safety legislation or guidance” and if so, how “serious was the failure to comply”.
In addition the jury must consider whether or not senior managers (a) knew or ought to have known the organisation was failing to comply; (b) were, or ought to have been, aware of the risk of death or serious injury; and (c) whether they sought to cause the organisation to profit from the failure. The jury can however consider any other matters they consider relevant.

Causation
It is also necessary that the death has been ‘caused’ by the way the activities are managed or organised by the senior managers. The way of managing does not have to be the only cause, only a ‘significant’ cause.