For over a decade, successive governments have faced continued criticism that existing health and safety legislation, alongside the common law offence of corporate manslaughter, is wholly inadequate to deal with the most serious of tragedies.

Under the existing common law provisions, to punish an organisation appropriately, the prosecution has to prove, beyond reasonable doubt, gross negligence manslaughter by an individual who is part of the ‘directing mind’ of the organisation that caused or contributed to the death. This has proved to be an almost insurmountable task, where in reality, there is no one individual who could properly be considered part of the ‘directing mind’ of the organisation and who is also individually guilty of gross negligence manslaughter.

The new offence of Corporate Manslaughter (or Corporate Homicide in Scotland), however, will be committed if the way in which a business’ senior managers organise or manage activities causes a person’s death, and this amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. The shift of focus - from the ‘directing mind’ to senior managers - in the new offence is set to make it easier to obtain successful convictions.

The new Corporate Manslaughter and Corporate Homicide Act 2007 came into force on April 6.

How will it affect me?

The new law will affect almost all businesses, including partnerships that are employers. It aims to make the corporate identity accountable for manslaughter, but does not change the accountability for individual directors or senior managers. Consequently, only the organisation itself can commit an offence under the new legislation. But be warned - this does not mean that individuals are exempt from prosecution for manslaughter.

Will I have new obligations?

There are no new obligations imposed upon businesses under the act. Under the new law, a duty of care will be owed by an organisation to the deceased under the same circumstances as is already owed under the law of negligence.

What do I have to do?

A review of a business’ health and safety management systems - internally or by hired-in help - against current industry standards and guidance will identify whether there is more to be done.

But I am only a small business - surely I am exempt?

There is no exemption for a small business. If your business is incorporated or a partnership, you will be caught by the act.

What happens if I do nothing?

While the new act does not provide for individuals to be prosecuted, the existing common law provisions relating to individual manslaughter will remain in force. Where the prosecuting authority believes that there are individuals at fault, they are likely to be prosecuted with the corporate defendant.

What are the penalties?

The Sentencing Guidelines Council has suggested that, as a starting point, it should impose a fine which is equal to five per cent of the organisation’s annual turnover.

In addition to a fine, courts can compel the organisation to ‘advertise’ its conviction in the local or national press, on the basis that a ‘name and shame’ culture may send a message to other businesses.

Where can I find out more?

There is a considerable amount of information and guidance in the public domain. These websites should help: www.hse.gov.uk/corpmanslaughter/index.htm and

www.opsi.gov.uk/acts/acts2007/ukpga_20070019_en_1

Stuart Ponting and Poppy Williams are solicitors in the Litigation and Regulatory Group of international law firm DLA Piper LLP.