Several attempted prosecutions - most notably those after the Paddington rail disaster of 1999 - have been brought under common law rules, but convictions remained elusive because it was necessary to identify a 'directing mind', often within large organisations with multitiered management structures.
The new legislation applies only to charities that are incorporated either as companies, by royal charter or by statute. It also applies to their trading subsidiaries. Individuals cannot be prosecuted under the act because they cannot be guilty of aiding or abetting the offence. However, this does not absolve individuals or organisations from responsibility for compliance with health and safety legislation more generally.
The new offence is committed when an organisation's activities are organised or managed in such a way as to amount to a gross breach of a duty of care owed to a person, and where this breach of duty causes death. The duty of care can arise when the organisation is the employer, occupier of premises or supplier of goods and services. A gross breach of duty occurs when the action of the organisation falls far below what can be reasonably expected in the circumstances.
The offence can occur only when the manner in which the senior management directs the organisation's activities is a substantial element of the breach of duty. Senior management is wider than the trustee board alone. On conviction, an organisation faces an unlimited fine and may be subject to a publicity order requiring it to publicise details of the conviction. For a charity, this would be disastrous.
Directors or trustees of charitable companies should ensure they keep their health and safety management systems under review and appropriately supervised, and that senior managers are made aware of their responsibility to consider the way their activities are managed and organised.
- Andrew Studd is a partner in the charity team at Russell-Cooke