Corporate manslaughter

Regulatory provisions and authorities

1. What is the main legislation relevant to corporate manslaughter?

There is currently no legislation providing for an offence of corporate manslaughter in Bermuda. However, the Criminal Code Act 1907 contains provisions that generally govern the criminal liability of corporations and sets out various forms of criminal conduct that corporations can be held liable for, including manslaughter by negligence. A magistrates’ court can send a company for trial under the Criminal Jurisdiction and Procedure Act 2015.

Offences

2. What is the specific offence that can be used to prosecute corporate manslaughter?

There is no specific offence for the prosecution of corporate manslaughter in Bermuda. See Question 1.

Defences

3. What defences or exemptions are available and who can qualify?

There are no specific defences or exemptions available as corporate manslaughter is not a specific offence in Bermuda. See Question 1.

Enforcement

4. Which authorities have the powers of prosecution, investigation and enforcement in cases of corporate manslaughter? What are the authorities’ powers of prosecution, investigation and enforcement, and what are the consequences of non-compliance?

Prosecution authorities

While there is no specific offence of corporate manslaughter in Bermuda (see Question 1), corporate crimes are investigated and prosecuted by the Bermuda Police Service (BPS) and the Department of Public Prosecutions (DPP).

The DPP is the sole prosecutorial agency and is responsible for public prosecutions, confiscation and conviction-based forfeiture of assets. The DPP prosecutes criminal offences and advises other governmental agencies.

The BPS Criminal Investigations Unit is responsible for investigating crimes generally, while the Organised and Economic Crime Unit deals with the specific offences of money laundering/terrorist financing and any financial offences, including fraud.

Prosecution powers

While there is no specific offence for corporate manslaughter, corporate criminal matters are referred to the DPP.

Powers of interview

The Police and Criminal Evidence Act 2006 (Police and Criminal Evidence Act), Ministerial issued codes of practice and the Police (Conduct) Order 2016 set out general police powers of interview and limitations on those powers. They apply equally to corporate criminal matters.

Powers of search/to compel disclosure

Police powers are governed by the Police and Criminal Evidence Act and include powers of arrest, detention, search and seizure, and surveillance. In addition to police powers, the regulators and agencies such as the Financial Intelligence Agency have powers to investigate and require disclosure, subject to the limitations of legal professional privilege over documents and information. See Question 1.

Failure to comply and co-operate with a regulator or agency that is exercising its power is a contravention of the law.

Powers to obtain evidence

Obtaining evidence in Bermuda is mostly through the exercise of powers to search for and seize evidence, as well as the power to interview.

Power of arrest

The Bermuda Police Service exercises the power of arrest.

Court orders or injunctions

Enforcement proceedings can include injunctions or interim orders over assets. These matters are normally at the discretion of the court and injunctive relief can be applied for and obtained within a relatively short period of time.

5. Which authority makes the decision to charge and on what basis is that decision made? Are there any alternative methods of disposal and what are the conditions of such disposal?

See Question 1.

Conviction and sanctions

6. What are the penalties for corporate manslaughter?

See Question 1.

Safeguards

7. Are there any measures in place to safeguard the conduct of investigations? Is there a process of appeal? Is there a process of judicial review?

Although there is no specific offence of corporate manslaughter, corporations can still be held liable for offences such as manslaughter by negligence (see Question 1). As such, safeguards are in place for investigations and there is an appeal process.

Procedural safeguards are provided for in the Police and Criminal Evidence Act, the Police (Conduct) Order 2016 and its related five codes of practice, which govern the rights of arrested and detained persons, such as the right to have an attorney present during questioning. Administrative decisions, including those taken by courts and prosecutors, can be subject to challenge by judicial review.

The right to claim legal professional privilege is generally preserved in regulatory investigations. However, the regulators and agencies can compel the production of documents or information. Regulatory decisions are generally reviewable.

Health and safety offences

Regulatory provisions and authorities

8. What are the main regulatory provisions and legislation relevant to health and safety offences?

The main health and safety offences and regulatory provisions are found in the Occupational Safety and Health Act 1982 (Occupational Safety and Health Act) and the Occupational Safety and Health Regulations 2009 (Safety Regulations).

There are additional offences related to health and safety under the:

Public Health Act 1949.
Workers Compensation Act 1965.
Fire and Safety Act 2014.
Merchant Shipping (Health and Safety at Work) Regulations 2004.
Criminal Code Act 1907.

Offences

9. What are the specific offences relating to health and safety?

The main offences relating to health and safety matters are contained in section 21 of the Occupational Safety and Health Act. These offences are:

Failing to discharge a duty under the:
- general duties of employers under section 3;
- general duties of employers and self-employed persons to persons not in their employment under section 4;
- general duty of employees under section 5;
- duty of person controlling premises to persons not employed there under section 5A; and
- general duties of manufacturers in relation to product safety under section 7.
Contravening the Safety Regulations.
Contravening any requirement or prohibition imposed by a notice of contravention, including any such notice as modified on appeal.
Intentionally obstructing Safety and Health Officers in the exercise of their powers or the performance of their duties.
Falsely pretending to be a Safety and Health Officer.
Intentionally making or causing to be made a false entry in any register, book, notice or other document required to be kept in compliance with the Occupational Safety and Health Act or the Safety Regulations, or deleting or destroying any true or proper entry in such a document.
Contravening any other provision of the Occupational Safety and Health Act or failing to comply with an order or direction made under the Occupational Safety and Health Act or the Safety Regulations.

Under the Occupational Safety and Health Act, if an offence is committed by a corporate body with the consent or connivance of, or is attributable to negligence by, any director, manager, secretary or any person purporting to act in any such capacity, that person as well as the corporate body commits the offence and is liable to be proceeded against and punished accordingly. Therefore, it is possible for the offence to be brought against an individual and/or a corporate body.

Defences

10. What defences or exemptions are available and who can qualify?

The Safety and Health Minister (currently the Minister responsible for the Ministry of Health) (Minister) can, on the advice of the Advisory Council for Health and Safety, exempt conditionally or otherwise any person or class of persons from any provision of the Occupational Safety and Health Act, the Safety Regulations or codes of practice, as long as the standard of safety and health of any employee at work is not adversely affected.

These exemptions can apply to any person/employer that the Minister and the Council selects.

Enforcement

11. Which authorities have the powers of prosecution, investigation and enforcement in cases of health and safety offences? What are the authorities powers of prosecution, investigation and enforcement, and what are the consequences of non-compliance?

Prosecution authorities

Safety and Health Officers are in charge of supervising, regulating, inspecting and serving notice to any person or corporate body that they believe has or will contravene any provision in the Occupational Safety and Health Act and/or the Safety Regulations.

A notice served under the Occupational Safety and Health Act will require those persons to remedy the contravention within a specified period.

Persons who have been served with a notice by the Safety and Health Officer can appeal to the Magistrates’ Court. An appeal regarding any such order, determination or other decision of the Magistrates’ Court is to the Supreme Court.

The Bermuda courts do not have extra-territorial jurisdiction to hear the prosecution of such offences.

Prosecution powers

An authorised officer with reasonable cause to believe that a person has committed an offence can issue a ticket in the prescribed form to that person. The Occupational Safety and Health Act does not define “authorised officer”. However, this would likely cover any public officer who has been authorised by the Minister to exercise any powers or perform any duties conferred or imposed on a Safety and Health Officer under the Occupational Safety and Health Act. The authorised officer must complete and sign the summons part of the ticket and deliver it to the person charged with the offence. However, there is an option to pay, out of court, the amount of the offence. On receipt of a summons signed with a plea of guilty and of the correct amount, an officer of the court will issue a receipt and place the summons before the court. The court will then convict the person of the offence and no further penalty will be imposed.

If a person charged with an offence does not plead guilty to the offence and pay the penalty specified in the summons, they must appear at the time and place specified in the summons for the hearing of the charge. If they fail to appear, the court may issue a warrant to arrest them and bring them before the Magistrates’ Court under section 3 of the Criminal Jurisdiction and Procedure Act 2015.

Powers of interview

Under 13 of the Occupational Safety and Health Act, Safety and Health Officers can require any person whom they find in or at a place of employment to provide any information they can in relation to the identity of the employer at that place of employment.

Powers of search/to compel disclosure

Under section 13 of the Occupational Safety and Health Act, Safety and Health Officers can:

At any reasonable time (or, in a situation which in their opinion is or may be dangerous, at any time), enter a place of employment where there is reason to believe any employee or self-employed person works or has worked, and conduct any tests, take any samples and make examinations that are considered necessary or advisable.
Make any examinations and investigations that may be necessary to ascertain whether or not the Occupational Safety and Health Act or the Safety Regulations are being complied with.
Direct that a place of employment that they have power to enter, or any part thereof, or anything within it, is to be left undisturbed for as long as is reasonably necessary for the purpose of any examination or investigation in connection with ensuring whether or not the Occupational Safety and Health Act or the Safety Regulations are being complied with.
Take samples of any articles or substances found in any place of employment that they have power to enter.
Cause any article or substance found in any place of employment that appears to them to have caused or to be likely to cause danger to health or safety to be dismantled or be subjected to any processes or tests they deem necessary.
Require the production of, inspect and take copies of any books, records or documents, or anything within them, kept under the Occupational Safety and Health Act or the Safety Regulations. This material can be detained for as long as is necessary for all or any of the following purposes:
- examination, and for any other purpose within the officers’ power;
- ensuring that the material is not tampered with before the examination of it is completed;
- ensuring that the material is available for use as evidence in any proceedings for an offence under the Occupational Safety and Health Act or the Safety Regulations or any proceedings relating to a closing notice (section 15).
Require any person they find in or at a place of employment to provide any information the person can in relation to the identity of the employer at that place of employment.

In addition, under section 18 of the Occupational Safety and Health Act, the Minister can require any person to provide such information in such form and manner and within such time as the Minister may specify.

Powers to obtain evidence

See Powers of Search/to compel disclosure.

There are no powers to obtain evidence abroad under the Occupational Safety and Health Act.

Power of arrest

If a person charged with an offence does not plead guilty to the offence and pay the penalty specified in the summons and fails to appear at the summons hearing, the court can issue a warrant to arrest that person and bring them before Magistrates’ Court under section 3 of the Criminal Jurisdiction and Procedure Act 2015.

Court orders or injunctions

While not a court order, the Minister can issue a closing notice to any employer if they are satisfied that any place of employment or part thereof is in such a state as to be a danger to health or safety. A closing notice prohibits the use of the place of employment or part thereof in respect of which the notice is made for any purpose other than a purpose approved by the Minister.

A person can appeal to the Magistrate’ Court if aggrieved by:

The withholding of approval by the Minister of any use of the place of employment or part thereof to which a closing notice relates.
A refusal by the Minister to determine a closing notice.

Such an appeal must be brought within 28 days after the withholding of approval or the refusal, as the case may be. The appeal must be made by way of complaint for an order.

12. Which authority makes the decision to charge and on what basis is that decision made? Are there any alternative methods of disposal and what are the conditions of such disposal?

The Safety and Health Officer is responsible for charging an offender where there is reasonable cause to believe that a person has committed an offence under the Occupational Safety and Health Act. The Occupational Health and Safety (Approved Code of Practice) Notice 1997 must be considered in determining whether a person has committed an offence.

Conviction and sanctions

13. What are the sanctions for health and safety offences?

The penalty for health and safety offences is a fine not exceeding BMD1,000.

While there are no ancillary orders provided for under the Occupational Safety and Health Act, the Minister can issue a closing notice in respect of a place of employment prohibiting the use of that location.

Safeguards

14. Are there any measures in place to safeguard the conduct of investigations? Is there a process of appeal? Is there a process of judicial review?

A person can appeal to the Magistrate’ Court if aggrieved by either:

The withholding of approval by the Minister of any use of the place of employment or part thereof to which a closing notice relates.
A refusal by the Minister to determine a closing notice.

The court can make any order as it thinks fit on appeal. The appeal must be brought within 28 days after the withholding of approval or the refusal, as the case may be. The appeal must be made by way of complaint for an order.

An order, determination or other decision of the Magistrate’s Court under section 15A of the Occupational Safety and Health Act can be appealed to the Supreme Court.

A notice of contravention or an oral direction of a contravention can be appealed to the Safety and Health Appeals Officer within seven days from the date of the giving of the notice or the giving of the oral direction. The officer can then affirm, amend, or cancel the notice.

Any person aggrieved by the decision of the Safety and Health Appeals Officer can, within seven days from the date of the decision, appeal to the Minister against that decision.

Any person aggrieved by the decision of the Minister on an appeal can appeal to the Supreme Court within 15 days by lodging a notice of appeal with the Minister setting out the grounds of appeal. On appeal, the Supreme Court can make orders, including orders for costs, as it thinks fit.

Environmental offences

Regulatory provisions and authorities

15. What are the main regulatory provisions and authorities responsible for investigating environmental offences?

The main regulatory provisions in respect of environmental offences is Clean Air Act 1991 (Clean Air Act) and the Clean Air Regulations 1993 (Clean Air Regulations). However, Bermuda has several regulatory provisions related to environmental offences, including the:

Bermuda National Parks Act 1986.
Coral Reef Preserves Act 1966.
Marine Board Act 1962.
Merchant Shipping Act 2002.
Merchant Shipping (Prevention of Air Pollution From Ships) Regulations 2005.
Merchant Shipping (Prevention of Oil Pollution) Regulations 2010.
Water Resources Act 1975.

The main authority for investigating environmental offences is the Environmental Authority.

Offences

16. What are the specific offences relating to the environment?

The main offences under the Clean Air Act are:

Failure to comply with a stop order. A stop order is an order requiring the person on whom the order is served to stop a specified contravention.
Construction of a controlled plant without a permit or in contravention of a construction permit.
Operation of a controlled plant without a licence or in contravention of a construction permit.
Willfully obstructing another person acting in the exercise of any powers of entry and inspection conferred on them by section 18 of the Clean Air Act.
Failure without reasonable excuse to comply with the requirements of a notice to provide information served under section 20 of the Clean Air Act.
Issuing, signing or participating in the preparation or issue of a document or information that is false or misleading in a material respect.

The main offence under the Clean Air Regulations is contravening a prohibition contained in regulations 3 to 9 against:

Burning debris in an open fire.
Releasing hazardous substances or controlled chemicals into the air.
Importing, exporting or using any controlled chemical in Bermuda.
Emitting, or causing or permitting to be emitted from any source any specified air contaminants contrary to the maximum limit prescribed.

In addition, it is an offence under the Clean Air Regulations not to report any known uncontrolled release of air contaminates.

Under section 26(5) of the Clean Air Act, if an individual who has committed an offence against the Clean Air Act was at the time he committed the offence a director, manager, secretary or other similar functionary of a corporate body and committed the offence in that capacity, then the corporate body also is guilty of the offence and is liable to be proceeded against and punished accordingly.

The penalty for a corporate body is usually a specified fine issued by the relevant Minister.

Defences

17. What defences or exemptions are available and who can qualify?

A person will not be guilty of the offence of providing false information documents under section 21(a) and (b) of the Clean Air Act if they can prove that they had no knowledge of the falsity or misleading character of the document or information, and took every reasonable precaution to ensure its accuracy.

In addition, it is a defence under the Clean Air Regulations if an operator charged with an offence regarding the failure to report the uncontrolled release of air contaminates can prove that they either:

Did not engage in the operation of the plant.
Had no knowledge of the occurrence.
Could not reasonably be expected to have such knowledge.

Enforcement

18. Which authorities have the powers of prosecution, investigation and enforcement in cases of environmental offences? What are the authorities powers of prosecution, investigation and enforcement, and what are the consequences of non-compliance?

Prosecution authorities

The Minister responsible for the environment is the Minister appointed under the Ministry of Home Affairs (Minister). The Minister and inspectors are responsible for prosecuting offences under the Clean Air Act. Inspectors include:

Officers appointed by the Minister by instrument in writing to be an inspector.
Environmental health officers of the Ministry responsible for Health.
Police officers.
Customs officers.
Fire officers or fire inspectors appointed under section 28(1) of the Fire Safety Act 2014.

These persons and the Bermuda Courts do not have extra-territorial jurisdiction under the Clean Air Act.

Prosecution powers

The Minister can serve a stop order on a person, if it appears to the Minister that the person either:

Has contravened or is contravening the Clean Air Act or the Clean Air Regulations.
Has failed to comply with an order made, or direction given under the Clean Air Act or the Clean Air Regulations.
Has failed to comply with a term or condition of a licence.
Owns or operates a plant, structure or thing that is a source of air pollution that the Minister considered to be an immediate danger to human life or property.

(Section 13, Clean Air Act.)

The stop order must specify its subject matter contravention. If it appears to the Minister that a person who was served a stop order has failed to comply with that order, the Minister can make an application to the Supreme Court for an enforcement order. If after hearing the relevant parties the Supreme Court is satisfied that the stop order has been lawfully made and has not been complied with, the Supreme Court can make an enforcement order allowing an inspector to:

Enter the relevant land, plant or structure.
Seize and hold any equipment used on that land, plant or structure in contravention of the stop order.

An inspector can serve an emission control order on a person owning or operating any plant, structure or thing that the inspector considers to be the source of, or one of the sources of, air contaminants if it appears to the inspector that:

There is a contaminant in the air:
- in a concentration that exceeds or will exceed, the maximum concentration prescribed for that air contaminant;
- in an amount that exceeds or will exceed, the maximum ground level concentration prescribed for that air contaminant;
- of a degree of visibility that exceeds or will exceed, the maximum degree prescribed for that air contaminant;
- that does not comply with a regulation regulating offensive odours; or
- that is, or is likely to be, injurious to life or health, or to be detrimental to property.
An air contaminant has been emitted or is being emitted into the air from a plant, structure or thing:
- in a concentration that has exceeded, is exceeding, or will exceed, the maximum concentration of that air contaminant permitted by regulations to be emitted from that plant, structure or thing; or
- at a rate that has exceeded, is exceeding or will exceed, the maximum rate permitted by regulations for that plant, structure or thing.

An inspector can also serve an emission control order on a person owing or operating a controlled plant where it appears to the inspector that a term or condition of an operating licence imposing a restriction on the emission of an air contaminant has been or is about to be contravened.

An emission control order can require the person on whom the order is served to:

Limit or control the rate of emission of the air contaminant by the plant, structure or thing in accordance with directions contained in the order.
Stop the plant, structure or thing in question from emitting the air contaminant either permanently or for a specified period or during times or in circumstances specified in the order.
Comply with any directions contained in the order relating to the manner in which the air contaminant can be emitted or the procedures to be followed in the control or elimination of the emission of the air contaminant.
Install, replace or alter any equipment or thing designed to control or eliminate the emission of the air contaminant.
Report with respect to any matter in accordance with directions specified in the order.

Powers of interview

The Clean Air Act does not specifically provide for a power of interview. However, there is the power to obtain information (see below, Powers of search/to compel disclosure).

Powers of search/to compel disclosure

Under section 20 of the Clean Air Act, the Minister can serve on any person a notice requiring them to furnish to the Minister any specified information that the Minister reasonably considers required for their functions under the Clean Air Act.

Powers to obtain evidence

Section 18(b) of the Clean Air Act provides that any person authorised in writing by the Minister can at any reasonable time carry out such inspections, measurements and tests on the land or of any articles on it, and take away samples of the land or articles.

Power of arrest

There is no power of arrest under the Clean Air Act.

Court orders or injunctions

While not a court order, the Minister has the authority to issue a stop order, while an inspector has the power to issue an emission control order.

Prosecution authorities

19. Which authority makes the decision to charge and on what basis is that decision made? Are there any alternative methods of disposal and what are the conditions of such disposal?

The Minister and inspectors make the decision to charge violators (see Question 18).

Conviction and sanctions

20. What are the penalties for environmental offences?

The penalties for offences under the Clean Air Act are as follows:

A person convicted of an offence under section 14(1) is liable to imprisonment for a term not exceeding 12 months or a fine not exceeding BMD50,000, or both.
A person convicted of an offence under section 14(1) for non-compliance with a stop order is liable to a fine not exceeding BMD50,000 for each day that the non-compliance continues.

For all other offences, a person is liable on conviction of an offence to imprisonment for a term not exceeding six months or a fine not exceeding BMD5,000, or both.

Safeguards

21. Are there any measures in place to safeguard the conduct of investigations? Is there a process of appeal? Is there a process of judicial review?

There are several provisions allowing for an appeal of a decision or order of the Minister. Generally, the appeal is to either the Minister, the Environmental Authority or the Supreme Court.

Corey Cross, Compliance Manager also helped in the preparation of this article.

First published by Practical Law – Thomson Reuters, May 2020