The decision to include deaths in custody as part of the offence of corporate manslaughter sends out an important message, writes Judith Seddon


'Good on you, your Lordships,' said Lord Hunt of Wirrall in congratulating the House of Lords on successfully persuading the government to include deaths in custody as an integral part of the offence of corporate manslaughter in the Corporate Manslaughter and Corporate Homicide Act 2007. The Act, which received Royal Assent on 26 July, finally fulfilled the government's ten-year-long promise to introduce this legislation.



The driving force behind it was not the desire to protect those in custody from organisational failings which lead to death, but to better protect employees and members of the public when failures on the part of large corporations lead to death.



The failed prosecutions in recent years need little recital. They started with the failed attempt to prosecute the senior managers after the sinking of the Herald of Free Enterprise. This was despite the findings of the Sheen inquiry, reporting following that disaster, that the board of directors did not appreciate their responsibility for the safe management of their ships. Or more recently, the failed Hatfield prosecution of senior managers within Railtrack and Balfour Beatty after a train derailed because basic track maintenance had not been carried out, but the blame for which could not properly be laid at the doors of any individual manager.



But it was the determination of the Lords which led to the government's change of heart in extending the Act to cover deaths in custody, albeit this extension will not come into force at the same time as the rest of the Act on 6 April 2008. Assurance has been given that the government 'will start out on this process with a timetable of three years in mind', although the likelihood is that this will slip to five years in order to allow the police and Prison Service, as the Secretary of State for Justice Jack Straw stated, to 'understand fully the extent of these obligations and take steps to implement them'.



In achieving this amendment, Lord Hunt of Wirrall congratulated the Lords on 'upholding the rights of those in custody and in the hands of the state. Often the most vulnerable in our society, they must be owed a duty of care'.



Under the new law, the offence of corporate manslaughter can be committed where an organisation owes a relevant duty of care to an individual, and the way in which its activities have been managed or organised, substantially by senior management, amounts to a gross breach of that duty and causes death. In determining whether or not a breach is 'gross', the jury may also '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 any such failure [to comply with health and safety legislation], or to have produced tolerance of it'.



Although the provisions concerning deaths in custody are to be delayed, they are significant. When they are implemented and where it is found that no one person can be held responsible but where the system has let down the detained person through gross breach of its duty of care and caused their death, the Prison Service and police forces may now be held liable for corporate manslaughter. Of course, individual prison officers or police officers can still be prosecuted for gross negligence manslaughter if they are individually culpable under the existing law.



But an important message has been sent out that everyone - including those in custody - should be equal before the law in circumstances where an organisation, through its own gross management failings, causes death.



Judith Seddon is a partner in the fraud and regulatory department at Russell Jones & Walker