The Effectiveness Of The New Corporate Manslaughter Act

The Corporate Manslaughter and Corporate Homicide Act 2007 (hereinafter the CMCHA or the Act) was a key development in the law surrounding liability for corporate homicide in the UK. The Act sought to remedy the shortcomings of the common law offence of gross negligence manslaughter, in relation to corporate manslaughter. The most cited failure of the common law offence was the employment of the identification doctrine, which involved identifying the controlling mind of the company in question a process that seldom proved successful. These issues were made increasingly apparent following a number of high-profile disasters such as The Herald of Free Enterprise capsizing, resulting in 187 deaths. Owing to complex management structures, meaning that the controlling mind could not readily be identified, no prosecutions for corporate manslaughter were brought against the companies many considered to be responsible.

Such high-profile events in the public eye coincided with the 1996 Law Commission Report laying foundations for the offence of corporate killing, in order to overcome the barriers to prosecution that were prevalent as a result of the use of the identification doctrine. The CMCHA was introduced in 2007 with the aim of enabling more prosecutions to proceed in relation to corporate manslaughter, and overcoming the issues with the application of the identification doctrine, strengthening criminal liability against corporations.

Analysing the Act from inception to completion, up until its standing in the present day, has indicated that there are a number of shortcomings that have inhibited its effectiveness. These barriers can be considered to belong to one of two groups: barriers to effectiveness in bring prosecutions in the first place and barriers to effectiveness that arise once prosecutions are brought. A focus on one fatality the need to establish a duty of care the need for the consent of the Director of Public Prosecutions (DPP) and the use of the senior management test have the potential to act as barriers to bringing prosecutions under the Act in the first place. In regard to barriers arising once prosecutions are brought, these include the exclusion of individual liability, and issues surrounding sentencing.

It is important to consider that the Act has made progress in comparison to the common law, albeit the scope for further improvement is considerable. There has been a dramatic increase in prosecutions, with 26 confirmed since 2007. The most significant prosecution to date in R v CAV Aerospace would have been impossible under the common law. It is clear therefore that the Act has been effective in this instance, however the evidence in regard to other cases relating to large organisations is lacking, meaning that the robustness of the senior management test and its utility in its blanket application to organisations of all sizes is questionable.

It is clear that not everybody is convinced as to the effectiveness of the Act, with the majority of commentators holding a negative outlook as to the success of the Act in achieving its original aims, with the test cases to date providing a conclusive answer that the Act is not adept in securing liability for organisations with more complex managerial structures. The senior management test only remains applicable to smaller organisations, and has failed to consider more complex managerial structures prevalent in the modern day. The Act therefore seemingly embodies a similar position to the outdated common law, albeit slightly improved, and necessitates reform in order to overcome these inadequacies.