Q: What are the elements of 'corporate killing'?A: The draft Involuntary Homicide Bill appended to the Law Commission's report gives a short and deceptively simple definition: 'A corporation is guilty of corporate killing if...a management failure by the corporation is the cause or one of the causes of a person's death...and that failure constitutes conduct falling far below what can reasonably be expected of the corporation in the circumstances.' Guilt will be a question of fact rather than law, there is to be no absolute standard of care, and 'management failure' lies at the heart of liability.Q: What is 'management failure'?A: The draft Bill defines it in broad and vague terms: 'There is a management failure by a corpor ation if the way in which its activities are managed or organised fails to ensure the health and safety of persons employed in or affected by those activities.' Potential prosecutors will be looking principally for companies at which the same scale of criticism can be levelled as that which Lord Cullen laid at the door of Occidental Petroleum in the conclusion to his report on the Piper Alpha disaster: 'There were significant flaws in the quality of Occidental's management of safety...senior management were too easily satisfied that [procedures] were being operated correctly...They failed to provide the training required...In the face of a known problem...they did not become personally involved...They adopted a superficial response when issues of safety were raised by others...They failed to ensure that emergency training was being provided.'Q: Will the Law Commission recommendations reach the statute book?A: The proposal for a crime of 'corporate killing' is expected to have a difficult passage through Parliament but enactment is a strong probability.Q: How long will they take to become law?A: Probably not less than two years.

Even if a Bill is introduced in the next parliamentary session, committee and report stages are likely to be lengthy.Q: Will they be retrospective?A: No.Q: Who will be liable to prosecution?A: Only a corporation could face a charge of corporate killing.

Sole traders and unincorporated associations would face prosecution for other new statutory offences recommended by the commission, namely 'reckless killing' and 'killing by gross carelessness'.

The common law offence of involuntary manslaughter would be abolishedQ: Who will be able to bring charges of corporate killing?A: The commission shies away from giving the Attorney-General, director of public prosecutions and Crown Prosecution Service exclusive conduct of charges.

Private prosecution would be possible.Q: Will directors and managers face personal prosecution?A: Not for corporate killing, even as a secondary party.

But if the particular acts or omissions of particular individuals were a contributing cause of death, directors and managers may find themselves in the dock on trial for the commission's suggested replacements for common law manslaughter: 'reckless killing' and 'killing by gross carelessness'.

In addition, 'corporate killing' would run in parallel with the current framework of health and safety regulation.

Managers and others would, for instance, remain liable for personal prosecution -- and in some cases imprisonment -- under the Health and Safety at Work Act 1974 (HSWA) if offences under that Act were committed with their 'consent' or 'connivance' or attributable to 'neglect' by them of their particular responsibilities (s.37).Q: What will be the penalties and consequences of conviction?A: An unlimited fine on the corporation, coupled with the power to order that specific remedial action be taken within a fixed timescale.

The latter will not be a novelty: courts already have jurisdiction to issue similar orders following conviction under the HSWA, though they seem rarely to be deployed (s.42).

Conviction would make defence of the question of liability in civil claims brought by the deceased's estate and dependants almost impossible.Q: Will our insurance policies cover the costs of defending a charge?A: Most standard insurance policies written for employers, public, product and pollution liability risks cover the costs of defending criminal charges under the HSWA and similar regulatory laws.

Many provide additi onal funds for representation at inquests.

Quite a number, however, do not indemnify against the defence costs of a common law manslaughter charge or other Crown Court trial and would likewise not extend to an indictment for corporate killing.

Since the costs of defending a charge of corporate killing are likely to be substantial, companies would be wise to check their policy wordings in due course and bargain for insurance which will expressly cover the costs of defending criminal charges brought in any court and arising out of alleged breach of any statutory duty.

Fines are uninsurable for reasons of public policy.Q: Should we be making changes now to our safety management?A: Only if you are already falling short of required standards.

The charge of corporate killing is an answer to the difficulty of convicting companies of common law manslaughter.

Even if it reaches the statute book as a new crime, the obligations of companies and their management to ensure the safety of employees and the general public will not change noticeably: there will simply be a further weapon in the armoury of enforcement and public accountability.LAW COMMISSION PROPOSALS-- Abolish the common law offence of involuntary manslaughter.-- A new offence of 'corporate killing' capable of commission only by corporations and triable only on indictment.-- Power to direct that remedial action be taken by a company convicted of corporate killing.-- Statutory offences of 'reckless killing' and 'killing by gross carelessness' putting liability on individuals.