The offence

The Act attempts to align the offence of corporate killing north and south of the border. An indictable offence^[8] is committed if the way in which an organisation's activities are managed or organised:^[9]

• Causes a person's death; and
• Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased;

— and the way in which its activities are managed or organised by its senior management is a substantial element in the breach.^[10] Prosecution in England or Wales requires the permission of the Director of Public Prosecutions, and in Northern Ireland, the Director of Public Prosecutions for Northern Ireland^[11] and no natural person can be charged with aiding and abetting the offence.^[12] In Scotland, all prosecutions are initiated by the Procurator Fiscal.^[2] The common law offence of gross negligence manslaughter, as it applies to corporations, is abolished.^[13]

Organisations liable

The offence applies to:^[14]

• Corporations;
• Partnerships,^[15] trade unions and employers' associations, that are themselves employers.
• Police forces;
• Various, but not all, government departments;^[16]

Relevant duty of care

A relevant duty of care is one of several duties of care owed by the organisation under the law of negligence and is a question of law for the judge.^[17] Various government policy decisions;^[18] policing,^[19] military^[20] and child protection^[21] activities; and emergency responses^[22] are excluded.

There are particular duties of care owed to persons in custody (s. 2(1)(d)) and, owing to the sensitivity and difficulty of such duties, implementation of this section was delayed. The Ministry of Justice published a report on progress towards implementation in July 2008.^[23]

Gross breach

A breach of a duty of care by an organisation is a gross breach if the alleged conduct amounts to a breach of that duty that falls far below what can reasonably be expected of the organisation in the circumstances.^[24] The jury must consider whether the evidence shows that the organisation failed to comply with any health and safety legislation that relates to the alleged breach, and if so:^[25]

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

The jury may also:^[25]

• Consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged the failure, or to have produced tolerance of it; and
• Have regard to any health and safety guidance that relates to the alleged breach.

Senior management

Senior management means the persons who play significant roles in:^[26]

• The making of decisions about how the whole or a substantial part of its activities are to be managed or organised; or
• The actual managing or organising of the whole or a substantial part of those activities.