The law was significantly changed with the passing of the Corporate Manslaughter and Corporate Homicide Act 2007. The Act came into force on 6 April 2008. The law applies to the whole of the United Kingdom. Many of the concerns raised in the pre-legislative consultation stages were remedied but as shall be e[i]xplored in this chapter some real problems remain with the final text.
The Act arrived with a fanfare:[ii]
The Corporate Manslaughter Act is a landmark in law and the culmination of ten years of campaigning by unions and other groups. Well-run businesses that already have effective systems in place for managing health and safety have nothing to fear from the new legislation. But employees of companies, consumers and other individuals will be offered greater protection against the worst cases of corporate negligence.
The provisions of the Act apply to corporations, specified departments including a whole range of government departments, partnerships as defined in the Partnership Act 1980, limited partnerships under the Limited Partnership Act 1907, trade unions, and other organisations acting as an employer (s. 1(2)). This list is not exhaustive and by virtue of Schedule 1 of the Act the Secretary of State can extend the reach of the Act to other organisations. Such organisations will be guilty of an offence if the way in which organisation activities are managed, causes a person’s death, and is caused by a gross breach of a relevant duty of care which is owed by the organisation to the victim. In this regard, the new Act is a welcome expansion as to the types of organisation that can be held to be criminally liable for killing.
An offence will only be made out where the organisation has a relevant duty of care. Section 2(1) states that a duty of care will be imposed for the purposes of the Act if such a duty of care exists in the common law of negligence. This includes, inter alia, duties owed by an employer to their employees and occupiers to visitors and trespassers. The inclusion of such a requirement is at odds with the reform proposals by the Home Affairs Work and Pensions Committee and it is submitted can provide organisations with an artificial way of escaping liability even though an organisation is highly culpable in the killing of another.[iii] (Gobert 2008b: 416). The decision as to whether a duty of care is imposed will be question of law, and is not to be decided by the jury (Corporate Manslaughter and Corporate Homicide Act 2007, s. 2(5)). This was judicially confirmed in R v Evans.[iv]
Furthermore, the breach of said duty of care has been stated in vague terms in that it must fall far below acceptable standards of what can reasonably be expected. A jury will decide whether such a breach should be considered worthy of criminal liability. However, without set principles to guide them, it will be the whim of the jury that decides if a breach is criminal. This has led commentators to declare that ‘the requirement that the management of corporate activities should amount to a gross breach of a duty of care allows for uncertainty to exist over exactly how bad a breach must be to be gross’.[v] However, it should be noted that Section 8 of the Act does list a number of factors that the jury can use to decide whether a breach is gross in nature. However, this guidance still does not negate the possibility of disparities between different juries. However, this criticism is applicable to jury trials generally, and is not a specific criticism of the 2007 legislation. One of the factors to consider is compliance with Health and Safety legislation. However, it is argued here that there may be a temptation for juries to look solely at this factor whereas the incidents of corporate killing are potentially wider and includes deaths that are not strictly related to deaths caused by work-related health and safety violations.
An organisation will only be guilty of such an offence if the way activities are managed by senior management acts as a significant element of the breach (s. 1(3)). This requirement is also problematic. This requirement has the effect of limiting liability to cases where the breach can be linked to the fault of a senior manager. The death does not have to be the main cause or only cause but it needs to be a substantial cause. This was a welcome relaxation of the requirement which appeared in the Draft Bill which indicated that the management failure was the cause. However, this was ultimately rejected as this would lead to introducing problems of identification which had bedeviled the pre-2007 law. The Standing Committee of the House of Commons that debated this issue highlighted that the assessment of substantial would be fact-specific. The problem with such an approach is that it does not lend itself to legal certainty.
A company can be fined (s. 1(6)) and/or a remedial or publicity order may be made against it on conviction (s. 9(5)). Finally, the harm caused have been sustained in the United Kingdom or in a location which is defined in sections 28(3) and 28(4) of the Act. While the legislative provisions are a welcome advance on the common law it is necessary to explore certain areas in detail which have created uncertainty or ambiguity.
The offence will only be committed if the way an organisation manages its activities significantly contributes to a gross breach of the duty of care. It does not have to be the sole reason for the breach. However, it may be difficult to ascertain whether the way an activity is managed is substantial. The Act also focuses on the activities of senior management only. There are advantages to this approach over the identification doctrine approach. Cavanagh posits two main advantages.[vi] First, it is a small tentative approach towards depicting the true nature of corporate fault in that it moves away from the ‘wholly individualistic nature of the identification doctrine to a test that better reflects corporate fault’.[vii] Second, it is based on a broader category of persons than under the identification doctrine and this should lead to more convictions as companies will ‘no longer be able to avoid liability, despite their blameworthiness, because blame cannot be neatly tied to one individual’.[viii]
However, despite these advantages, the weight of scholarly opinion asserts that the management failure test may be problematic. It may be difficult in practice to ascertain who is senior management. It is defined in the legislation but will be subject to interpretation. Clough argues that the:[ix]
…definition encompasses a broader range of personnel than the identification doctrine, and appropriately emphasises the actual role of individuals rather than their formal position within the organisation, it is likely to give rise to unnecessary complexity and questions of interpretation.
This echoes the concerns raised at the pre-legislative stage. Not only will there be a requirement to identify who is a senior manager but it is also necessary to prove that their role was significant within the company or that they managed a considerable portion of the company’s activities. This may lead to considerable evidential issues with Clarkson and Keating noting that the management failure requirement threatens ‘to open the door to endless argument in court as to whether certain persons do or do not qualify as part of the senior management’.[x]
There is also a concern that management responsibility may be easier to define in smaller companies than in larger companies and there may a temptation by larger companies to shift responsibility for activities to lower management to avoid the imposition of criminal liability.[xi] Some scholars have commented that this requirement permits a survival, in some form, of the identification doctrine.[xii] It is necessary to investigate how senior management organises company activities and therefore the corporate culture at the time of the death will need to be assessed. It may be difficult to gauge the culture at the time unless it is properly documented or evidence is provided by current or previous employees.
Individual Fault
The final text of the Act confirms that individuals will not be subject to prosecution. This is the case even where an individual is highly culpable and their failings or actions can be directly linked to the killing. This is a troublesome approach given that individuals may be attracted to take risks and engage in dangerous behaviours knowing that they can hide behind the company. After the Act was passed various interest groups sounded their disapproval of this approach. Families against Corporate Killers stated that the legislation was fatally flawed by not allowing for individual prosecutions. However, there is nothing in the legislation that prevents the prosecution of such individuals under the common law. However, that requires proof of duty, breach, causation, and requires a jury to conclude that a breach is deserving of criminal punishment. The inherent difficulties with overcoming these hurdles mean that prosecutions can be difficult. Wells adds that the inability to bring individual prosecutions is highly problematic:[xiii]
The removal of individual liability of any sort, even participatory liability, from the CMCHA offence is deeply problematic. Corporate liability cannot be separated entirely from the activities of individual humans within companies, albeit that it should not be slavishly dependent on them as with traditional attribution models.
This comment echoed similar misgivings from Wells in 2010 when she declared that ‘a corporation are themselves to blame for illegal corporate behaviour. It is important that any system provides for this … it is important to note that corporate liability in such a case should not replace individual liability’.[xiv] In Ireland, a 2013 Bill, aimed at reforming corporate manslaughter in that jurisdiction, has identified this gap in the UK legislation, and has recommended that individuals are capable of being prosecuted to provide the courts with a range of options to ensure that justice is done.[xv] This is an unfortunate omission from the new legislation and is something which has the potential to impact on the efficacy of the 2007 Act bringing those responsible for corporate manslaughter to justice. The problem created is that directors may engage in unsafe or reckless practices knowing that they can shield behind the corporate veil. A further problem is that prosecutors may pursue claims under the common law offence of gross negligence manslaughter. The problem with such an approach is that there are significant hurdles to overcome in securing a conviction.
There appears to be no appetite for including individual liability in any reform to the Act so this will remain a significant problem with the current legislative framework.
Public Bodies
Section 2(1)(d) of the Act was included as a result of fervent campaigning by human rights and other interest groups. It indicates that the 2007 Act extends to police forces and the prison service and imposes a duty of care towards a person who is held in a custodial institution, part of, a removal centre, or any short-term facility for detaining individuals. While in theory, this represents an extension of potential liability there are doubts about whether it will effect real change. Doyle and Scott note that s. 2(1)(d) represents a significant opportunity for holding the police responsible for death in custody but the problems of showing a breach of duty and management failure, which have been discussed previously, apply equally to claims for death in custody.[xvi] These are problematic requirements which may result in such organisations escaping liability despite being culpable.
However, while the Act is welcome in extending its ambit to a wide range of organisations, the police are afforded significant exceptions from liability when dealing with deaths of the general public. The police duty of care is limited by section 5 of the Act which applies to all public authorities and negates any duty of care to the public and/or employees in relation to any matter concerned with police operations relating to law enforcement or policing including dealing with terrorism, serious disorder or unrest (section 5(1)). Training and preparation activities are also excluded so that an employee has no recourse to the 2007 Act if they are killed as a result of such activities (section 5(1)(b)). Griffin and Moran argue that ‘a police force is left in the exact position it was prior to the implementation of the CMCHA, namely any accountability will be reliant upon a prosecution under the HSWA 1974’.[xvii] Recently, there have been calls for the training and preparation exemption to be repealed, most notably, in relation to military operations.[xviii] However, the Government has failed to listen to concerns from military advisors and the exemption remains on the statute book. Horder opines that if the exceptions are widened it may have negative effects in terms of making it more appealing for prosecutors to use common law gross negligence manslaughter but this does not reflect the reality of what actually happens in that culpability lies with the police or army.[xix]
Prosecutions and Fines
The criminal law has many aims. These include rehabilitation, punishment, deterrence and retribution. Prosecutions and fines are imposed to both punish and deter. Punishment must ‘serve the double purpose of singling out wrongdoers for the purpose of punishment or correction and of regulating the social order’.[xx] There are competing interests in relation to the objective of the criminal law and the right balance must be struck. This is equally true when we talk about punishing corporations. There is a fine balance between under-punishing so that the deterrent effect of the law is limited and over-punishment which means the corporation cannot work effectively and may operate defensively. This leads to a cost for society as certain companies and the services they provide may be eradicated. Deterrence is at the heart of prosecuting corporations.[xxi] However, the ability of the law to deter will be hampered if corporate punishment is not robust enough as it provides no incentive for companies to alter their behaviour. There is also a positive aspect to the imposition of corporate liability in relation to corporate killing. As evidenced by Fisse it can lead to the creation of better policies and procedures as well as the introduction of preventative measures to ensure mistakes and accidents do not reoccur.[xxii]
One of the major failings of the 2007 Act is the ability of the legislation to adequately punish and deter. The next part of this paper aims to summarise the prosecutions which have taken place under the Act since it was passed. Under health and safety legislation it was already possible to impose unlimited fines on corporations for health and safety violations. When the 2007 Act was passed a series of guidelines indicated that an adequate minimum threshold would be £500,000. The first prosecution was against the company Cotswold Geotechnical Holdings Ltd. This was a small company with a relatively simple corporate structure. An employee was killed while extracting soil samples. A conviction was secured against them and a fine of £385,000 was imposed. The sentence was appealed but the Court of Appeal confirmed the amount, despite arguments that it would lead to financial ruin for the company. Field and Jones noted that this represented a period of optimism that the legislation would have bark and bite.[xxiii] However, a line of cases subsequent to this judgment showed the courts being concerned with the financial implications of a fine on the future viability of a company. Cavendish Masonry was fined £150,000 which it was permitted to pay over five years. In R v J Murray and Son Ltd the Crown Court in Northern Ireland was concerned that a substantial fine would have the effect of terminating a business. In R v Sterecycle (Rotherham) Ltd the company was fined £500,000. This was the first time the fine had met the minimum requirements of the sentencing guidelines. However, context is important here. The judges knew when passing sentence that the company was in administration and therefore little if any of the fine would in fact be paid. The judges indicated that the fine would send out a signal to the public that corporate behaviour causing killing would not be tolerated. It is highly doubtful if this aim was secured. On a functional analysis, the signal sent out is that the law is a paper tiger, promising much, but in real terms delivering very little.
While the legislation was initially warmly welcomed it has since accumulated extant literature aimed at criticising it. Field asserts that the legislation and the sentencing guidelines have continued to disappoint in this area.[xxiv] One of the recurring criticisms is that the Act continues to facilitate the prosecutions of small and medium-sized businesses and not large corporations. This flaw has been recognised judicially in R v Lion Steel Equipment Limited at para 36. However, there is some evidence that prosecutions have taken place that would not have taken place under the pre-2007 law. CAV Aerospace was prosecuted in 2015 for the death of an employee. The prosecution was notable for two reasons. First, it was a prosecution of a parent company for the failing of the subsidiary with the court finding that the failings of the company expanded throughout the corporate structure.[xxv] Second, it was the first time under the new legislation that a corporation was prosecuted which could be described as medium to large in scale.[xxvi] It had a complex management structure yet the prosecution was successful. Field notes that this prosecution provides evidence that the ambit of the legislation is broader than the pre-2007 law.[xxvii] While this may be true for this one example, the legislation needs to be judged in terms of how it has effected significant change. An isolated example does not prove the argument that the 2007 legislation has extended the scope of corporate killing. However, Field further notes that the legislation has been effective in allowing prosecutions of organisations that are not corporations. The author highlights the prosecution of Maidstone and Tunbridge Wells NHS Trust for a death caused in one of their care home facilities. Field asserts that ‘[w]hile such prosecutions remain infrequent, their very initiation suggests that the face of the corporate defendant may be changing—and in a material aspect.’.[xxviii] Again, Field’s assessment may be overly optimistic. These convictions are outlying anomalies. In real terms, the impact of the legislation, in broadening the net of criminal liability has been limited.
Sentencing Review
As a result of concerns about the sentencing and fining of corporations under the 2007 Act, the Sentencing Council undertook an extensive review and published their findings in the 2015 Guidelines. The Consultation relied on the text of the Criminal Justice Act 2003, s. 164 which emphasised that in imposing punishment the guiding principle is the seriousness of the offence but an ancillary consideration would be the financial means of the defendant. Michael Caplan QC, a main member of the Sentencing Council, proclaimed that:
We want to ensure that these crimes don’t pay. Our proposals will help ensure a consistent approach to sentencing, allowing fair and proportionate sentences across the board, with some of the most serious offenders facing tougher penalties. We want to make sure it is clear that it will be cheaper to comply with the law than break it.
The new guidelines revealed a new starting point and sentencing ranges for companies based on their size ranging from micro organisations to very large organisations. An organisation with a turnover of more than £50 million could expect a starting point, on conviction, of £7,500,000 for a Category A offence with a range which included a maximum fine of £20,000,000. For organisations with a turnover of up to £2,000,000 the starting point would be £450,000 with a maximum of £800,000. As with most criminal offences the actual fine will be dictated by the presence of mitigating and aggravating factors and the level of culpability. This a marked shift upwards in the finning framework aimed at sending out a signal to companies that courts will be much harder in the fines they give.[xxix] According to Field, however, the new guidelines still fall short in some respects. For example, they do not adequately address the issue of turnover poor companies that may have considerable assets.[xxx] Such companies would escape the large fines and keep their assets secure.[xxxi]
However, it is noteworthy that under the new Guidance there is some early evidence that harsher penalties are being imposed. The London Central Criminal Court in Health and Safety Executive v Monavon Construction fined a company £500,000 for the deaths of two employees who fell from a building site. A fine of less magnitude would have been the result before the guidelines were implemented. It is still too early to assess whether the new guidelines will effect real change.
The 2007 Act has been welcomed by some commentators. Griffin notes that the Act is ‘to be welcomed as a statute which identifies a company’s liability for the offence of manslaughter in a manner that extends the probability of a successful prosecution’.[xxxii] However, even Griffin, who could be rightly described as a supporter of the Act, insists that the government missed an opportunity in not allowing for individual prosecutions.[xxxiii] Elliot and Quinn summarise the majority position on the Act, describing it as:
…disappointing, as it significantly waters down the original proposals to the point that the new offence looks very similar to the old common law, and will be almost as difficult to prosecute. The Home Office has stated that the 2007 Act will allow easier prosecution of big companies, but this is far from certain.
It is submitted that the failings in the current legislation along with the uncertainty in whether the Sentencing Guidelines for use from 2015 onwards will lead to more and harsher punishments demand that a new approach is taken in the UK to prosecuting corporate manslaughter.
[ii] ibid.
[iii] J Gobert, ‘The corporate manslaughter and homicide act 2007: thirteen years in the making but was it worth the wait’ (2008) 71 Modern Law Review 413-433.
[iv] [2009] 1 ELR 1999.
[v] P Almond, Corporate manslaughter and regulatory reform (Palgrave Macmillan 2013).
[vi] N Cavanagh, ‘Corporate Criminal Liability: an Assessment of the Models of Fault’ (2011) 74 Journal of Criminal Law 414.
[vii] Ibid 422.
[viii] ibid.
[ix] J Clough, ‘Bridging the theoretical gap: the search for a realist model of corporate criminal liability’ (2007) 18(3) Criminal Law Forum 267-300.
[x] CMV Clarkson H Keating and SR Cunningham, Criminal law (7th edn, Sweet and Maxwell 2010) 260.
[xi] Clough (n 86) 298.
[xii] Almond (n 82) 575.
[xiii] C Wells, Corporate Criminal Liability: a Ten Year Review’ (2014) 12 Criminal Law Review 849, 877.
[xiv] ibid.
[xv] SF Khan, Corporate Manslaughter – the Need for Reform. Irish Business Law Review’ (2013) Irish Business Law Review 37-46.
[xvi] D Doyle and S Scott, ‘Criminal Liability for Deaths in Prison Custody: the Corporate Manslaughter and Corporate Homicide Act 2007’ (2016) 55(3) Howard Journal of Criminal Justice 295-311.
[xvii] S Griffin and J Moran, ‘Accountability for deaths attributable to the gross negligence act or omission of a police force: the impact of the corporate manslaughter and corporate homicide act 2007’ (2010) 74(4) Journal of Criminal Law 358-381.
[xviii] L Ponting, ‘Government Ignores Essence of Military Manslaughter Concerns’ (2016) 452 Health and Safety Bulletin 21-22.
[xix] J Horder, ‘The criminal liability of organisations for manslaughter and other serious offences’ in S Hetherington (ed), Halsbury’s Laws of England Centenary Essays ( LexisNexis 2007).
[xx] ibid.
[xxi] B McAdams, ‘The appropriate sanctions for corporate criminal liability: an eclectic alternative’ (1997) 46 University of Cincinnati Law Review 989, 992.
[xxii] WB Fisse, ‘Reconstructing corporate criminal law: deterrence, retribution, fault and sanctions’ (1983) 56(56) Southern California Law Review 1141-1246.
[xxiii] S Field and L Jones, ‘Is the net of criminal liability under the corporate homicide and corporate manslaughter act 2007 expanding?’ (2015) 36(6) Business Law Review 216-219.
[xxiv] S Field, ‘Criminal liability under the corporate manslaughter and corporate homicide act 2007: a changing landscape’ (2016) 27(7) International Company and Commercial Law Review 229-233.
[xxv] ibid.
[xxvi] ibid.
[xxvii] ibid.
[xxviii] ibid 233.
[xxix] ibid.
[xxx] ibid.
[xxxi] ibid.
[xxxii] S Griffin, ‘Corporate killing – the Corporate Manslaughter and Corporate Homicide Act 2007’ (2009) 73 Lloyd’s Maritime and Commercial Law Quarterly 89, 89.
[xxxiii] ibid.