This protocol is relevant if any person dies or suffers such serious injuries that there is a strong likelihood of death as a result of an accident/incident arising out of or in connection with work carried out by employees of or on behalf of the Council.

The Corporate Manslaughter & Corporate Homicide Act (2007) means that companies and organisations can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care.  The Act, which came into force on 6 April 2008, clarifies the criminal liabilities of companies including large organisations where serious failures in the management of health and safety result in a fatality.

An organisation is guilty of the offence if the way in which its activities are managed or organised causes a death and amounts to a gross breach of a relevant duty of care to the deceased.  A substantial part of the breach must have been in the way activities were managed by senior management, i.e. the organisation will not be liable under the Corporate Manslaughter & Corporate Act (2007) if the failings were exclusively at a junior level.

Furthermore, the new offence allows an organisation’s liability to be assessed on a wider basis, providing a more effective means of accountability for very serious management failings across the organisation. 

The new offence is intended to complement, not replace, other forms of accountability such as prosecutions under health and safety legislation and is specifically linked to existing health and safety requirements.   The offence will support well managed organisations by targeting those which cut costs by taking unjustifiable risks with people’s safety.

Sentencing Guidelines issued in 2016 specify that the sentencing range is from £180,000 to £20 million. 

The Act applies to:

• Companies incorporated under companies’ legislation or overseas;
  
  
• Other corporations including:

• Public bodies incorporated by statute such as local authorities, NHS bodies and a wide range of non-departmental public bodies;
• Organisations incorporated by Royal Charter;
• Limited liability partnerships.

• All other partnerships, and trade unions and employer’s associations, if the organisation concerned is an employer;
  
  
• Crown bodies such as Government departments;
  
  
• Police forces.

The offence is concerned with the corporate liability of the organisation itself and does not apply to directors, senior managers or other individuals.  Nor is it possible to convict an individual of assisting in or encouraging the offence.

However, individuals can already be prosecuted for gross negligence manslaughter/culpable homicide and for health and safety offences.  The Act does not change this and prosecutions against individuals will continue to be taken where there is sufficient evidence and it is in the public interest to do so.

A work-related death occurs when: -

• Any person dies as a result of an accident/incident arising out of or in connection with work;
• The victim suffers such serious injuries that there is a strong likelihood of death.

 

Questions that can be asked to help determine whether a death is work related include:

• Is there, or was there a work activity on-going at the time and place of the accident/incident? 
• Was the deceased/injured party an employee or self-employed person who was at work at the time of the accident/incident? 
• Was the deceased/injured party a member of the public who was injured as a result of a work activity? 

Examples of work-related accidents/incidents which are not immediately apparent can include: gas or electrical incidents at rented accommodation; road traffic incidents; derelict buildings held for investment or development purposes; and the collapse of buildings and other structures.

 

Manslaughter

Manslaughter is a diverse crime and covers all unlawful homicides which are not murder. The crime falls into 2 categories of voluntary manslaughter and involuntary manslaughter. 

The offence of Corporate Manslaughter is created by Section 1 of the Act and an organisation would be found guilty of the offence if the way in which its activities are managed or organised: 

a)      causes a person's death, and

b)      amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

Furthermore, the organisation would be guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1).

An organisation that is guilty of corporate manslaughter or corporate homicide is liable on conviction on indictment to a fine.”

Under the Act, both the Local Authority (Buckinghamshire Council) and a school governing body count as an ‘organisation’.  Therefore, the LA or governing body could be found guilty of this offence if someone died as a result of the organization’s senior managers failing to properly manage or govern the activities at the school.  However, this would only be the case if the governing body or Local Authority’s failure amounts to a ‘gross breach’ of a duty of care which it owed to the person. 

Further school guidance can be found in Appendix C.

• A specific Protocol for Liaison for Work Related Deaths (Work-related Deaths: A protocol for liaison (England and Wales) - WRDP1 (hse.gov.uk)) is in place to ensure effective joint investigation of work-related deaths in England and Wales.  Additional supporting guidance is available in Work Related Deaths:  A Practical Guide (Work-related Deaths Protocol: Practical Guide (England and Wales) (hse.gov.uk)) and Work Related Deaths – Handover Document (handover-document.doc (live.com) as well as via the HSE Work-related deaths protocol (hse.gov.uk). 
• The scene is likely to be first visited by a Police Officer who will inform the Supervisory CID (Criminal Investigation Department) Officer and will make arrangements for the preservation of the scene and any forensic examination as appropriate.
• The police will then contact and inform other relevant enforcing authorities as soon as practicable. 
• CID will contact the HSE (Health & Safety Executive) and discuss the circumstance of the death.  During the investigation, one party will take primacy on the investigation (NB only the police can investigate homicide related offences [corporate or gross negligence manslaughter]).
• Where responsibility for the investigation passes to the HSE or the Police any evidence gathered or statements taken in the initial investigation will be made available to the appointed investigating officer.
• Where responsibility remains with the police the HSE will provide much of the necessary technical support and make available any reports they have made into the circumstances of the death.
• Responsibility for keeping bereaved relatives informed should be decided between the agencies, including the Council.

Appendix A

Action Card (Download)

Appendix B

Issue Log (Download)

Appendix C - Advice and guidance for schools

Who is a Senior Manager?

A senior manager is classed as a manager who makes decisions about how the whole or a substantial part of an organisation’s activities are to be managed or organised.  For a school this includes the Head Teacher, governing body and Heads of Department who are engaged in managing activities within the school and who make decisions about how these activities are organised. 

What is the duty of care?

The duty of care refers to the requirement to take reasonable care including the need to take steps to reduce or eliminate the risk of any foreseeable injury.  The ‘duty of care’ includes the following groups (as covered under existing Health & Safety legislation):

• Employees who work at the school;
• Any other person working at the school;
• Any person entering the school premises such as pupils entering the school, or any other visitors to the school, including (in a limited way) trespassers;
• Anyone supplying goods or services to the school or carrying out construction or maintenance at the school. 

What is a gross breach of duty of care?

If there has been a breach of duty and somebody dies, it does not automatically mean that the organisation is liable.  Any such breach must be amount to a gross breach of the duty of care, i.e the organisations conduct had fallen far below what could have been reasonably expected.  Determining whether there has been a gross breach will depend on:

• How serious the failure was; and
•       How much of a risk of death it posed. 

Some practical examples of a gross breach of care include:

• Where there was a failure to ensure adequate adult supervision has been provided for accompanying children on school trips.  If a child died as a result of a failure to manage this activity safely, the organisation could potentially be at risk.
  
  
• Pupils are known to attend school carrying knives.  If the Head Teacher/SMT were aware of this and failed to put in place measures to deal with this problem and if, as a result, a pupil was stabbed causing his/her death, the failure by Senior Management to manage this problem could amount to a gross breach of duty of care rendering the governing body liable.

What steps should Head Teachers/Senior Management take?

Head Teachers and the Senior Management/Leadership team should:

• Ensure their Health & Safety Management policy is regularly reviewed and is robust and sufficient with clearly identified roles and responsibilities;
• Ensure that an up to date Health & Safety policy is available, displayed and signed;
• Ensure all staff, including management understand their roles and responsibilities in regard to effective management of Health & Safety;
• Ensure that suitable and sufficient Risk Assessments have been carried out on all activities which have the potential to cause harm;
• Ensure Health & Safety responsibilities are included in job descriptions;
• Ensure all Contractors have suitable and sufficient Health & Safety arrangements;
• Ensure suitable and sufficient risk assessments have been carried out prior to any works commencing on school grounds;
• Ensure that any building work is carried out when the school is closed and outside of normal teaching hours.  If this is not possible, ensure all necessary safety precautions are adopted to reduce risk as far as is reasonably practicable;
•      Ensure there is a regular schedule for inspections and audits;
• Ensure all staff know where to obtain information on Health & Safety and welfare matters;
• Embed Health & Safety into the school culture;
• Ensure that Health & Safety performance is regularly reviewed/considered by the Head Teacher, Governors and other senior Managers;
• Ensure written records are kept of all meetings where Health & Safety is on the agenda;
• Ensure that specific protocols for dealing with a fatality are set out and that all staff are aware of how to access these protocols. 

Further help and advice is available from the Health & Safety Team via H&S Mailbox or 01296 674412