Legal Opinion

Corporate manslaughter law is changing, making it easier to convict universities. We speak to three top education lawyers about how this change could affect the sector.

The Corporate Manslaughter and Corporate Homicide Act 2007 (‘the Act’) reforms the current law and increases the likelihood of convictions for educational institutions. Until now, manslaughter has been a common-law offence, i.e. one based on case law, not statute. By definition, it is ‘unlawful killing where the defendant does not have any intention to kill’. Previously conviction required a directing mind – one who was responsible for the organisation, making it practically impossible to convict large organisations such as universities of corporate manslaughter. The new Act provides that an organisation will be guilty if an organisational or gross management failing causes a person’s death. Management failings can be aggregated together between an organisation’s senior managers. For educational institutions, it is likely that consideration of ‘senior manager’ responsibilities will start at governing body level.

Sentencing Advisory Panel Proposals
The sentencing of corporate manslaughter is intended to reflect serious concern at the consequences of the breach, and to send a message to those responsible for the governance of the organisation. There are three sanctions available to the court when sentencing for corporate manslaughter:
Unlimited fines
The Sentencing Advisory Panel’s (SAP) provisional view is that annual turnover is the most appropriate measure of an organisation’s ability to pay a fine. There is no specific reference to educational institutions in the SAP’s proposals. While HE institutions (HEI) are partly funded by public money, it is unlikely that the courts will treat them as a publicly funded body for the purposes of setting the level of fine.

Publicity Orders
A court may order that the details of an offence are published in any ‘specified manner’, giving the court scope to ensure that the publicity reaches its intended audience. The potential effect for the education sector is massive. The choice that people employ when choosing a Higher Education (HE) provider would be seriously affected by the knowledge of conviction for corporate manslaughter.

Remedial orders
Both the Act and the Health & Safety at Work etc. Act 1974 (HSWA) provide for rehabilitation of the offender through a remedial order – setting out steps to be taken to ensure that the failures that led to the death are addressed. Once again failure to comply with an order under the Act will be punishable by an unlimited fine.

Paul Verrico, solicitor advocate, Eversheds
While the new Act does not impose any new duties, it does impose new sanctions. Although fines grab the headlines, it’s the power of the Publicity Order that many universities fear. In a market where reputation is everything, if a prospective student were to google an institution and get hits on a corporate manslaughter conviction one can only imagine the fall in student numbers. The very raison d’être of a university is to facilitate discussion, challenge and personal development. Existing students would likely also join in the censure of a convicted university and its leaders.
Proposals on fines do not take full account of the difficult financial environment many HEIs operate in. While there is an implicit suggestion that fines against any public body would likely be far below those in the private sector, it remains to be seen how this will pan out in practice.
Don’t have nightmares over the new legislation. The government has predicted less than 15 prosecutions a year and the test for conviction is that of ‘gross breach’ – ie falling far below what can reasonably be expected of the organisation in the circumstances. Investigations to determine whether a prosecution shall be brought are, unfortunately, likely to last several years.

Jennette Newman, Berrymans Lace Mawer
Prior to this law, to convict any large organisation of corporate manslaughter was almost impossible because of the need to identify a directing mind (one person who could be deemed to embody the organisation and be responsible for the gross negligence). In the context of universities this person would have been difficult to identify. The new act abolishes this requirement and introduces the concept of culpability for collective senior management failure.
The Sentencing Advisory Board recommendations are not yet in play. If they do come into force then a conviction for corporate manslaughter would, on average, carry a fine of five per cent of annual turnover and, knowing the financial pressures universities are under, this would be a horrendous burden.
It is unlikely that universities will be the priority target for prosecutions. However, there may be more intensive investigation following any death on university property, and being involved in this process will be costly and time consuming. Universities need to think about how they will manage that investigation should it arrive, putting systems in place to prevent uncertainty and to protect employees.

Ian Mayers, Partner, and Dominique Wilton, Mills & Reeve
The way in which the university or college’s activities are managed or organised by its senior management (including Chancellors, Vice-Chancellors, Governors and probably also departmental Heads) must be a substantial element of the gross breach of a duty of care owed by the organisation to the deceased. A duty of care will arise where the organisation is an employer, occupier of premises and/or supplies services, meaning a duty will be owed to staff, students and visitors, including those from overseas. However, a duty of care will not be owed under the Act to staff or students who are seconded overseas because the Act only applies if the harm resulting in death is sustained in the UK.
Indications are that the starting point for fines will be five per cent of the offender’s average gross turnover. This will mean that HEIs are likely to face much higher fines than under the previous regime. The organisation could also face a publicity order, which would require it to publicise in a specified way the fact that it has been so convicted, for example, possibly an advert in the national press.
The HSWA and sub-ordinate regulations remain in force. Universities and colleges will therefore not need to completely revamp their practices but it will be necessary to continue with good practices and safe working method statements, keeping health and safety issues high on the agenda at every level of management within the organisation.

Contacts
www.mills-reeve.com
www.eversheds.com
www.blm-law.com