Tutor HuntResources Law Resources
Corporate Manslaughter
Corporate Manslaughter
Date : 13/04/2022
3. Corporate Manslaughter While Corporate Manslaughter and Corporate Homicide Act 2007 affords a superior basis of liability to the unwieldy common law offence that preceded it , it has nonetheless been criticized by both academics and practitioners for facilitating fewer prosecutions than predicted, [the] unjustifiable inconsistency in sentencing, a continued lack of individual accountability and a prosecutory preoccupation with a limited range of defendant . - Victoria Roper, 2018. Executive SummaryThe essay below would assess the effectiveness of the Corporate Manslaughter and Corporate Homicide Act 2007[1] in relation to insights drawn from Victoria Roper s 10-year review of the Act in order to discuss whether the Act alone has contributed to the perceived failures within that period of time, including (1) fewer prosecutions than predicted, (2) [the] unjustifiable inconsistency in sentencing, (3) a continued lack of individual accountability and (4) a prosecutory preoccupation with a limited range of defendant .[2] Prior to the introduction of the Act, charges against corporate defendants relating to deaths in the workplace focused on the common law offence of gross negligence and/or the regulatory offence under the health and safety law.[3] However, problems arose from not only that the common law offence of gross negligence was considered as an ineffective mechanism in attributing corporate liability, mainly due to the restrictive identification principle,[4] the House of Commons Home Affairs and Work and Pensions Committees (the Joint Committee) examined the Draft Corporate Manslaughter Bill in 2005 and had noted that prosecuting large corporations for the offence is in theory possible yet in practice almost impossible .[5] The Act however, has not provided a superior basis of liability to the problematic common law prior to it, when considering the following elements in the Act: the senior management test, the requirement of duty of care and the DPP consent and the exclusion of individual liability. It was described as a compromised approach leading to compromised results by Roper.[6] Having said that, the criticism of the perceived failure of the Act may be unwarranted as there had been several medium companies and one large company convicted under the Act, which would have been hardly possible under the common law. Meanwhile, more information suggests that the noted unfavorable outcomes and perceived failure in the number and range of prosecution may be a likely consequence of the structural weakness rooted in the prosecutory preoccupation and impotence.[7] Therefore, more training and resources should be devoted into this area in order to maximise the Act s full potential in terms of casting a wider prosecution net to provide a level playing field for organisations of different nature and sizes, increasing the number of prosecution and holding individual accountable. Further, in the hope that the introduction of the New Sentencing Guidelines[8] would provide a more sophisticated basis and parameters to fine in relation to an organisation s turnover and the level of culpability of the offence, we would see more consistency in future sentencing, as shown in the case of Martinisation (London) Ltd (2017).[9]
A 10 year review on the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA 2007 or the Act )[10] was produced by Victoria Roper in 2018.[11] The captioned statement gives an insight to Victoria Roper s view on the Act that although it replaced the common law offence of gross negligence manslaughter in application to companies and has since worked in complement to health and safety law[12], criticisms were raised among both academic and practitioners on several major aspects as noted in the statement.
A brief background of the legislation would be laid out in the following: (i) problems arose prior the Act, (ii) the need for reform and (iii) an overview and principal aims of the Act: (I) Problems Arose Prior the ActBefore the introduction of the Act, charges against corporate defendants relating to deaths in the workplace focused on two areas: the common law offence of gross negligence and/or the regulatory offence under the health and safety law.[13] A number of commentators considered the common law offence of gross negligence was an ineffective, restrictive and problematic mechanism in attributing corporate liability, mainly due to the identification principle.[14] Roper described the position before the introduction of the Act as untenable [15] whilst Almond shared a similar view that the old law had long struggled to hold corporate defendants criminally liable under the law of manslaughter ,[16] hence charges were brought commonly under the health and safety law instead.[17] The difficulty in prosecution in relation to the identification principle could be exhibited by the fact that even though it was established in 1991 in the Zeebrugge Ferry case that companies could be charged with the common law offence of gross negligence manslaughter[18], it is worthwhile to note that since 1992, there had only been a total of 7 work-related corporate manslaughter convicted, all of which were of small corporations or sole-traders[19]- including the company owner in the bereaved Lyme Bay Canoeing Disaster case. [20] More reference could be drawn from the conviction figures that between 1992 and 2005 (14 years), a total of 3425 workers were killed (thus excluded members of public) whilst only 6 convictions were successful from the 34 corporate gross negligence manslaughter charges.[21] In addition, the House of Commons Home Affairs and Work and Pensions Committees (the Joint Committee) examined the Draft Corporate Manslaughter Bill in 2005 and had noted that prosecuting large corporations for the offence is in theory possible yet in practice almost impossible .[22] Therefore, articulated by Slapper and supported by the Joint Committee s Report, the failure to successfully prosecute a substantially sized corporation (which essentially has a more complex management structure compared to small or one-man companies) arose from the identification principle where blames had to be pin to a controlling or directing mind within the company,[23] in other words a sufficiently senior individual whom to be identified as the embodiment of the company itself .[24] Therefore, unless this can be shown, which had proven to be a hardship, the prosecution will deem to be unsuccessful.[25] (II) The Need for ReformAs mentioned above, since late 1980s and 1990s, the inability or inadequacy of the common law to hold corporate defendants responsible for work-related or public fatality related to gross corporate failings had spurred strong social support for a reform.[26] This was due to a growing public concern and media perception of injustice after some high-profile disasters.[27] In addition, prior to the Act, more than 550 fatalities happened each year, including those at work and public members,[28] 70 - 85% of which, estimated by Slapper and Tombs, could be prevented by simple measures.[29] Following the Southall and Paddington rail crash in the late 1990s,[30] the Home Office published a proposed reform of corporate manslaughter in 2000,[31] based on the Law Commission`s proposals of 1996.[32] (III) An Overview and Principal Aims of the ActIn essence, the Act, known as corporate manslaughter (corporate homicide in Scotland) explicitly abolishes the common law rules on corporate manslaughter by gross negligence in s.20[33] while complementing the Health and Safety at Work Etc Act 1974.[34] Gobert pointed out that, although the title has referenced to corporate deaths, the Act is not limited to corporations but is applicable to a wide range of organisations, and differs to the old law, applies even to Crown bodies with some exceptions.[35] The threat of a specific criminal prosecution is meant to send a strong signal to organisations with its attached increased reputational risk under the possibility of public order[36] this in the hope would deter deficient health and safety standards. [37] Thus, the Regulatory Impact Assessment for the Act estimated that the Act would lead to an increase in prosecution of 10-13 cases per year.[38] This, however, excludes any element of individual liability, thus the offence does not apply to, for instance, company directors or managers.[39] Yet, individual charges of gross negligence manslaughter arising from the same event could be brought, as was the case prior to the Act.[40] Nevertheless, the Act meant to rectify the defect in the old law, rooted from the identification principle, with the replacement of the requirement of identifying senior managers.[41] On the other hand, prosecution requires the consent from the Director of Public Prosecutions (DPP) (except in Scotland) before they are brought. [42] In order to have a close look at the captioned statement, it would be useful to note that Roper first stated that the Act (0) affords a superior basis of liability to the unwieldy common law offence that preceded it , yet it has facilitated 4 unfavourable outcomes:(1) fewer prosecutions than predicted,(2) unjustifiable inconsistency in sentencing,(3) a continued lack of individual accountability and(4) a prosecutor preoccupation with a limited range of defendant (0) A Superior Basis of LiabilityWhether the Act affords a superior basis of liability to the common law, it would be useful to look at the elements in s.1 of the Act: (i) senior management test, (ii) duty of care (iii) exclusion of individual liability and (iv) requirement of DPP consent. (I) Senior Management TestRoper noted that since the identification principle is replaced by the more preferable senior management test , the Act now provides a basis on which prosecutions do not fail where no guilty directing mind could be identified. [43] That is, different from the common law, its capability expected to cast a wider net to prosecute a substantially sized corporation.[44] However, such expectation may attribute to the dissatisfactory numbers in successful prosecution, which would be discussed further. It is doubtful whether the test is a reintroduction of the identification principle in disguise, as noted by Ms Sally Ireland from JUSTICE s in the Joint Report[45] despite the Home Office argument that it involves a different basis of liability that focuses on the way the activities of an organisation were in practice organised or managed .[46] Griffin argued that it may be likewise problematic for the Act to have to identify an employee as a senior manager, particularly in organisations with complex management structures[47] since the concept from the term senior management was criticized as low on definition albeit in favor of judicial discretion.[48] Nevertheless, in practice, the Honourable Mr Justice Coulson in the case of Maidstone and Tunbridge Wells NHS Trust adopted a view that instead of specifically naming individual senior managers involved in the breach, the tier of management should be considered.[49] Hence, although some felt that the approach diverted from the Act where specific individuals are required to be identified and named for prosecution,[50] the NHS Trust case may still shed some light to future prosecutions in spite of the confusion arising from the slippery senior management concept[51] along with its arguably compromising nature. Even though it does not appear as a significant barrier against securing successful prosecutions,[52] it is doubtful whether the test attributes to a better basis for liability, especially in terms of capturing the corporate aggregated fault[53] limited to the senior management level with consideration of the substantial element in the breach.[54] (II) Duty of CareAs noted, the Act includes a civil law concept such that a duty of care must be established to the victim, unlike the earlier proposals of the offence, of those the 1996 Draft Bill only required there to be management failure by the corporation which was the cause, or one of the causes of the person s death.[55] Clarkson referred to such requirement as the superior one,[56] since it adds unnecessary legal complications considering that it is well established that employers owe employees a duty of care and that the duty is explicitly stated in the Act s. 2(1)(a).[57] Therefore, it is questionable whether this element, in practical terms, adds much value to the Act s basis of liability, especially where to-date there is no prosecutions involving factually more complex relationships than common employment relationship between the organization in breached and the deceased.[58] (III) Exclusion of Individual LiabilityThere were divided views among industry, victim groups, public sector and members of the public on the absence of the element of individual liability in the Act as noted in the Joint Committee s Report at the consultation stage.[59] Regarding the business aspect, it was feared that the provision of individual liability would act as an disincentive to junior staff to take on safety-related senior positions and for senior staff to be treated as scapegoat for not warranted corporate decisions that went wrong.[60] In addition, Lord Justice Judge agreed the government s position on the exclusion of the individual liability albeit work unions and victim groups argued that the lack of proposed individual sanction would create insufficient deterrent as well as doing little to deliver justice to families of victims.[61] The decision of the Home Office to exclude individual liability in the Act was to echo or some would argue, give in to industry pressure, which may account little merit to a preferable basis of liability if not to bring some adverse impact to the Act s effectiveness in encouraging higher health and safety standards since a certain degree of the deterrent effect is forfeited.[62] However, the Home Office justified its decision by stating that the reform meant to address the inadequacy of the common law to hold corporation accountable and therefore it concerns corporate instead of an individual matter.[63] It was further supported by Fiona Mactaggart MP that, a certain degree of individual responsibility could be captured under the framework of the gross negligence manslaughter offence and the health and safety legislation.[64] (IV) Requirement of DPP consentGobert argued that such requirement would potentially entangle a corporate manslaughter prosecution with politics and as a consequence public interest may be hindered. This is because a decision of the DPP to withheld consent may be suspected to be influenced by MPs who in turn had been influenced by corporate lobbyists .[65] Similarly, Griffin noted that coupling with other requirements in the Act, such requirement may further act as an obstacle for significant increase in the number of convictions under the offence.[66] However, Roper claimed that contrary to the anticipation, it has not appeared to be the case.[67] Nevertheless, with in mind that there has only been 25 successful convictions until Sept 2017 so more would have to be looked at in future cases for a definite conclusion. Hence, based on the elements noted, it would be difficult to denote that the Act has provided a superior basis of liability to the problematic common law prior to it, particularly when considering that albeit their significance in the Act, the senior management test, the requirement of duty of care, requirement of the DPP consent and the exclusion of individual liability have assisted the Act to attain a statutory middle ground , also as described as a compromised approach leading to compromised results by Roper, potentially owing to the government s intent to strive for a balance between the health and safety of the workers and the concerns and interests of other stakeholder groups.[68]
(1) Fewer Prosecutions Than PredictedAlthough there has been an increase in prosecutions, there has only been 25 convictions under the offence until Sept 2017, it is apparent that the Act has failed to live up to the Regulatory Impact Assessment estimation of an additional 10-13 cases per year, with in mind that this only amounts to around 3-4% of recorded work related-deaths.[69] Although as noted, the senior management concept was widely critised at the consultation stage,[70] it has not been the major pitfall of the Act when securing convictions, owing to two reasons: Firstly, most in reality both corporate and individual charges have been simultaneously brought against the corporation and individual(s) in breach. However, the conviction rate for the latter had been disappointingly low, where there had only been 2 out of 25 convictions (until Sept 2017) where both corporate manslaughter and gross negligence manslaughter were successful. A justifiable reason for the low conviction rate may be, as the judge affirmed in the
A 10 year review on the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA 2007 or the Act )[10] was produced by Victoria Roper in 2018.[11] The captioned statement gives an insight to Victoria Roper s view on the Act that although it replaced the common law offence of gross negligence manslaughter in application to companies and has since worked in complement to health and safety law[12], criticisms were raised among both academic and practitioners on several major aspects as noted in the statement.
A brief background of the legislation would be laid out in the following: (i) problems arose prior the Act, (ii) the need for reform and (iii) an overview and principal aims of the Act: (I) Problems Arose Prior the ActBefore the introduction of the Act, charges against corporate defendants relating to deaths in the workplace focused on two areas: the common law offence of gross negligence and/or the regulatory offence under the health and safety law.[13] A number of commentators considered the common law offence of gross negligence was an ineffective, restrictive and problematic mechanism in attributing corporate liability, mainly due to the identification principle.[14] Roper described the position before the introduction of the Act as untenable [15] whilst Almond shared a similar view that the old law had long struggled to hold corporate defendants criminally liable under the law of manslaughter ,[16] hence charges were brought commonly under the health and safety law instead.[17] The difficulty in prosecution in relation to the identification principle could be exhibited by the fact that even though it was established in 1991 in the Zeebrugge Ferry case that companies could be charged with the common law offence of gross negligence manslaughter[18], it is worthwhile to note that since 1992, there had only been a total of 7 work-related corporate manslaughter convicted, all of which were of small corporations or sole-traders[19]- including the company owner in the bereaved Lyme Bay Canoeing Disaster case. [20] More reference could be drawn from the conviction figures that between 1992 and 2005 (14 years), a total of 3425 workers were killed (thus excluded members of public) whilst only 6 convictions were successful from the 34 corporate gross negligence manslaughter charges.[21] In addition, the House of Commons Home Affairs and Work and Pensions Committees (the Joint Committee) examined the Draft Corporate Manslaughter Bill in 2005 and had noted that prosecuting large corporations for the offence is in theory possible yet in practice almost impossible .[22] Therefore, articulated by Slapper and supported by the Joint Committee s Report, the failure to successfully prosecute a substantially sized corporation (which essentially has a more complex management structure compared to small or one-man companies) arose from the identification principle where blames had to be pin to a controlling or directing mind within the company,[23] in other words a sufficiently senior individual whom to be identified as the embodiment of the company itself .[24] Therefore, unless this can be shown, which had proven to be a hardship, the prosecution will deem to be unsuccessful.[25] (II) The Need for ReformAs mentioned above, since late 1980s and 1990s, the inability or inadequacy of the common law to hold corporate defendants responsible for work-related or public fatality related to gross corporate failings had spurred strong social support for a reform.[26] This was due to a growing public concern and media perception of injustice after some high-profile disasters.[27] In addition, prior to the Act, more than 550 fatalities happened each year, including those at work and public members,[28] 70 - 85% of which, estimated by Slapper and Tombs, could be prevented by simple measures.[29] Following the Southall and Paddington rail crash in the late 1990s,[30] the Home Office published a proposed reform of corporate manslaughter in 2000,[31] based on the Law Commission`s proposals of 1996.[32] (III) An Overview and Principal Aims of the ActIn essence, the Act, known as corporate manslaughter (corporate homicide in Scotland) explicitly abolishes the common law rules on corporate manslaughter by gross negligence in s.20[33] while complementing the Health and Safety at Work Etc Act 1974.[34] Gobert pointed out that, although the title has referenced to corporate deaths, the Act is not limited to corporations but is applicable to a wide range of organisations, and differs to the old law, applies even to Crown bodies with some exceptions.[35] The threat of a specific criminal prosecution is meant to send a strong signal to organisations with its attached increased reputational risk under the possibility of public order[36] this in the hope would deter deficient health and safety standards. [37] Thus, the Regulatory Impact Assessment for the Act estimated that the Act would lead to an increase in prosecution of 10-13 cases per year.[38] This, however, excludes any element of individual liability, thus the offence does not apply to, for instance, company directors or managers.[39] Yet, individual charges of gross negligence manslaughter arising from the same event could be brought, as was the case prior to the Act.[40] Nevertheless, the Act meant to rectify the defect in the old law, rooted from the identification principle, with the replacement of the requirement of identifying senior managers.[41] On the other hand, prosecution requires the consent from the Director of Public Prosecutions (DPP) (except in Scotland) before they are brought. [42] In order to have a close look at the captioned statement, it would be useful to note that Roper first stated that the Act (0) affords a superior basis of liability to the unwieldy common law offence that preceded it , yet it has facilitated 4 unfavourable outcomes:(1) fewer prosecutions than predicted,(2) unjustifiable inconsistency in sentencing,(3) a continued lack of individual accountability and(4) a prosecutor preoccupation with a limited range of defendant (0) A Superior Basis of LiabilityWhether the Act affords a superior basis of liability to the common law, it would be useful to look at the elements in s.1 of the Act: (i) senior management test, (ii) duty of care (iii) exclusion of individual liability and (iv) requirement of DPP consent. (I) Senior Management TestRoper noted that since the identification principle is replaced by the more preferable senior management test , the Act now provides a basis on which prosecutions do not fail where no guilty directing mind could be identified. [43] That is, different from the common law, its capability expected to cast a wider net to prosecute a substantially sized corporation.[44] However, such expectation may attribute to the dissatisfactory numbers in successful prosecution, which would be discussed further. It is doubtful whether the test is a reintroduction of the identification principle in disguise, as noted by Ms Sally Ireland from JUSTICE s in the Joint Report[45] despite the Home Office argument that it involves a different basis of liability that focuses on the way the activities of an organisation were in practice organised or managed .[46] Griffin argued that it may be likewise problematic for the Act to have to identify an employee as a senior manager, particularly in organisations with complex management structures[47] since the concept from the term senior management was criticized as low on definition albeit in favor of judicial discretion.[48] Nevertheless, in practice, the Honourable Mr Justice Coulson in the case of Maidstone and Tunbridge Wells NHS Trust adopted a view that instead of specifically naming individual senior managers involved in the breach, the tier of management should be considered.[49] Hence, although some felt that the approach diverted from the Act where specific individuals are required to be identified and named for prosecution,[50] the NHS Trust case may still shed some light to future prosecutions in spite of the confusion arising from the slippery senior management concept[51] along with its arguably compromising nature. Even though it does not appear as a significant barrier against securing successful prosecutions,[52] it is doubtful whether the test attributes to a better basis for liability, especially in terms of capturing the corporate aggregated fault[53] limited to the senior management level with consideration of the substantial element in the breach.[54] (II) Duty of CareAs noted, the Act includes a civil law concept such that a duty of care must be established to the victim, unlike the earlier proposals of the offence, of those the 1996 Draft Bill only required there to be management failure by the corporation which was the cause, or one of the causes of the person s death.[55] Clarkson referred to such requirement as the superior one,[56] since it adds unnecessary legal complications considering that it is well established that employers owe employees a duty of care and that the duty is explicitly stated in the Act s. 2(1)(a).[57] Therefore, it is questionable whether this element, in practical terms, adds much value to the Act s basis of liability, especially where to-date there is no prosecutions involving factually more complex relationships than common employment relationship between the organization in breached and the deceased.[58] (III) Exclusion of Individual LiabilityThere were divided views among industry, victim groups, public sector and members of the public on the absence of the element of individual liability in the Act as noted in the Joint Committee s Report at the consultation stage.[59] Regarding the business aspect, it was feared that the provision of individual liability would act as an disincentive to junior staff to take on safety-related senior positions and for senior staff to be treated as scapegoat for not warranted corporate decisions that went wrong.[60] In addition, Lord Justice Judge agreed the government s position on the exclusion of the individual liability albeit work unions and victim groups argued that the lack of proposed individual sanction would create insufficient deterrent as well as doing little to deliver justice to families of victims.[61] The decision of the Home Office to exclude individual liability in the Act was to echo or some would argue, give in to industry pressure, which may account little merit to a preferable basis of liability if not to bring some adverse impact to the Act s effectiveness in encouraging higher health and safety standards since a certain degree of the deterrent effect is forfeited.[62] However, the Home Office justified its decision by stating that the reform meant to address the inadequacy of the common law to hold corporation accountable and therefore it concerns corporate instead of an individual matter.[63] It was further supported by Fiona Mactaggart MP that, a certain degree of individual responsibility could be captured under the framework of the gross negligence manslaughter offence and the health and safety legislation.[64] (IV) Requirement of DPP consentGobert argued that such requirement would potentially entangle a corporate manslaughter prosecution with politics and as a consequence public interest may be hindered. This is because a decision of the DPP to withheld consent may be suspected to be influenced by MPs who in turn had been influenced by corporate lobbyists .[65] Similarly, Griffin noted that coupling with other requirements in the Act, such requirement may further act as an obstacle for significant increase in the number of convictions under the offence.[66] However, Roper claimed that contrary to the anticipation, it has not appeared to be the case.[67] Nevertheless, with in mind that there has only been 25 successful convictions until Sept 2017 so more would have to be looked at in future cases for a definite conclusion. Hence, based on the elements noted, it would be difficult to denote that the Act has provided a superior basis of liability to the problematic common law prior to it, particularly when considering that albeit their significance in the Act, the senior management test, the requirement of duty of care, requirement of the DPP consent and the exclusion of individual liability have assisted the Act to attain a statutory middle ground , also as described as a compromised approach leading to compromised results by Roper, potentially owing to the government s intent to strive for a balance between the health and safety of the workers and the concerns and interests of other stakeholder groups.[68]
(1) Fewer Prosecutions Than PredictedAlthough there has been an increase in prosecutions, there has only been 25 convictions under the offence until Sept 2017, it is apparent that the Act has failed to live up to the Regulatory Impact Assessment estimation of an additional 10-13 cases per year, with in mind that this only amounts to around 3-4% of recorded work related-deaths.[69] Although as noted, the senior management concept was widely critised at the consultation stage,[70] it has not been the major pitfall of the Act when securing convictions, owing to two reasons: Firstly, most in reality both corporate and individual charges have been simultaneously brought against the corporation and individual(s) in breach. However, the conviction rate for the latter had been disappointingly low, where there had only been 2 out of 25 convictions (until Sept 2017) where both corporate manslaughter and gross negligence manslaughter were successful. A justifiable reason for the low conviction rate may be, as the judge affirmed in the
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