Commentary on Sections Section 8: Factors for jury
37.Section 1(4)(b) sets out the test for assessing whether the breach of duty involved in the management failure was gross. The test asks whether the conduct that constitutes this failure falls far below what could reasonably have been expected. Whether this threshold has been met will be an issue for the jury to determine. The previous common law offence of gross negligence manslaughter asked whether the conduct was so negligent as to be criminal.
38.To provide a clearer framework for assessing an organisation’s culpability, section 8 sets out a number of matters for the jury to consider. In particular, these put the management of an activity into the context of the organisation’s obligations under health and safety legislation, the extent to which the organisation was in breach of these and the risk to life that is involved. Section 8 also provides for the jury to consider the wider context in which these health and safety breaches occurred, including cultural issues within the organisation such as attitudes or accepted practices that tolerated breaches. When considering breaches of health and safety duties, juries may also consider guidance on how those obligations should be discharged. Guidance does not provide an authoritative statement of required standards and therefore the jury is not required to consider the extent to which this is not complied with. However, where breaches of relevant health and safety duties are established, guidance may assist a jury in considering how serious this was.
39.These factors are not exhaustive and section 8(4) provides that the jury is also to take account of any other relevant matters.