The Corporate Manslaughter and Corporate Homicide Act became part of UK Law on 26 July 2007.  Under the new legislation an organisation will be guilty of an offence, if the way in which its activities are managed or organised causes a person's death, and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

In short, companies and organisations can be prosecuted where there has been a gross failing, throughout the organisation, in the management of health and safety, that has resulted in fatal consequences.

Implications regarding the use for physical force by employed staff.

What is interesting is that the new Act also includes an amendment to include deaths in custody, and this is particularly well timed if we consider the recent cases of Gareth Myatt and Adam Rickwood. This amendment will allow organisations to be prosecuted where death results from the use of physical restraint, particularly where companies and organisations have failed to manage the risks associated with the activity such as ensuring that the training is carried out in such a way as to minimise the risk to loss of life - a requirement also under Article 2(1) of the Human Rights Act 1998.

Under the proposed legislation, an organisation is guilty of the offence of corporate manslaughter, if the way in which any of the organisation's activities are managed by the senior managers is a substantial element in the breach that:

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.

The interpretation of "employee"

Under the new Act the interpretation of "employee" means:

 "an individual who works under a contract of employment or apprenticeship (whether express or implied and, if express, whether oral or in writing),"..

This means that the term "employee" includes all staff, full-time, part-time, casual and / or voluntary. Therefore, if "employees" were expected to use physical force, either by a formal condition of contract, or where, even in absence of a formal condition of contract, the inference was "implied", the company or organisation will be responsible for any resultant death. Particularly where a death results from a failure in the way in which the staff or the operational use of force is managed, i.e., by inadequate staffing levels, lack of training, or worse, provision of incompetent training that fails to manage the risk posed (i.e, training that does not work in it's operational context).

The new Act seems to draw together various elements of Human Rights and Health and Safety at Work legislation, acting as a means of prosecution should death occur which could have been prevented by having in place a suitable and sufficient risk management strategy aimed at promoting the right to life, especially where a risk to life is known to exist.

The recent deaths of Gareth Myatt and Adam Rickwood have highlighted the risks associated with the use of force with vulnerable individuals. However, these are not isolated cases and it is worth noting that since 1990, twenty-nine children have died from restraint in custody in England and Wales and this doesn't take into account the number of adults who have also died.

Therefore, as a direct result of this new legislation senior management of companies and organisations will need to review their use of force procedures and systems of intervention (defence) and breakaway (self-defence) to ensure they do not fall foul of the new offences created by the Act now that it is in force. In addition senior management should not just 'buy-in' training, even if it is being marketed as 'Approved' or 'Accredited' training but use due diligence to find out whether the training actually complies with what the law requires. If not, senior management responsible for the commissioning of training may find themselves defending a charge of Corporate Manslaughter in England, Wales and Northern Ireland and Corporate Homicide in Scotland.

We will be holding a full briefing on the Corporate Manslaughter and Corporate Homicide Act as part of our NFPS Restraint Instructors Qualifying Course in September and October.

For more details of the above courses click here.

If you would like an in-house briefing or training day on how to develop a use of force strategy, that complies with what the new Act and also the Human Rights Act, Health and Safety legislation and / or Children's legislation requires, contact us by either dropping us an e-mail or calling us at our offices.