Essay: Corporate Manslaughter and Corporate Homicide Act 2007

Since the enactment of the Corporate Manslaughter and Corporate Homicide Act 2007 (hereafter 2007 Act), there have been a number of prosecution cases for work related manslaughter in the United Kingdom. However, very few of these have in fact materialized. This is due to the limitations and obscurities apparent in the present law. It is this failure to successfully prosecute corporate defendants that has led to an apparent perception amongst the public that the law dealing with corporate manslaughter is inadequate .
However, before analyzing any further the effectiveness of corporate manslaughter as a criminal offence against a non-natural legal person, some light needs to be shed upon the intention behind the 2007 Act and the protections awarded by it to the parties concerned.
2. Intention behind the Corporate Manslaughter and Corporate Homicide Act 2007
Prior to 2007, corporations could only be charged for deaths in and around workplace under two groups, i.e. offence of gross negligence manslaughter and/or regulatory offences under the Health and Safety at Work Act (hereafter HSWA 1974). Both of these were filled with inadequacies since obtaining a successful conviction under a corporate gross negligence manslaughter charge was next to impossible. This is because, in order to obtain a successful conviction, under the ambit of manslaughter, a company had to be in a “gross breach of duty of care” owed to the victim. This could only be established through the ‘identification principle’ according to which a “directing mind” of the company i.e. a senior manager had to be guilty of the offence, which in essence was not easy to prove, therefore making prosecutions under its garb extremely difficult. A sole person would have to be singled out for a gross breach of their duty, which, in fact, is very difficult , as responsibilities up the chain of command had to be pinpointed, and charging cases of death under the Health and Safety law was not enough. As a result, corporations became relaxed as they could escape liability without much difficulty due to lack of accountability for workplace deaths. This gave rise to a need for reform.
2.1 The intention behind the 2007 Act is to proceed as a method for accounting serious corporate management failures and to defeat the old common law issues of identification and aggregation. The scope of this offence is considerably more extensive than addressing the two issues of common law noted above to incorporate liability for corporate manslaughter by companies which was impossible from the start. Moreover, the 2007 Act is not retrospective , therefore, any conduct resulting in death or any offence or any acts committed before 06th April 2008 – i.e. the enactment of the 2007 Act, will not be subject to its provisions, nor liable under the current law.
2.2 Furthermore, the persisting problem in the old law, relating to corporate manslaughter, was that prosecutors could not prosecute companies without a liable individual to be prosecuted alongside the company, due to the principle established in Salomon v Salomon & Co [1897] . This principle was that a company is a separate legal entity, without any human existence, leaving the outsiders unable to argue that the company is the same as those controlling it. Therefore the doctrine of identification is mainly used when considering whether a company is to be held criminally liable for acts done by its agents, who are deemed to be in control of the company, as acts done by the company itself.
Lord Reid, in Tesco Supermarkets ltd v Nattrass [1971] , on the principle of identification, explained:
“A company acts through its living persons and any acts carried out by those persons are not acts carried out for the company. In fact, the acts are carried out as the company, in the sense, that the person is an embodiment of the company i.e. the person’s mind is that of the company and therefore if that mind is a guilty mind then that is the guilt of the company” – therefore establishing that an individual cannot be held personally liable.
Having to identify an individual responsible for the grossly negligent acts, that led to manslaughter, had become extremely problematic specially in cases where a controlling authority or individual could not be identified, whose shortcomings would leave the company liable, leading companies to often escape liability for their acts [R v P.& O. European Ferries [Dover] Ltd [1990]] .
2.3 Following the much evident inadequacies in the previous law, and in response to a number of high-profile disasters, as well as the growing problem of workplace deaths, in 1996, the Law Commission’s Report “Legislating the Criminal Code: Involuntary Manslaughter” was released bringing forward proposals for a new offence of corporate killing. This would act as a standalone statutory offence, enabling prosecution of a company rather than just individuals. Later, in 2000, the Government proposed the creation of a specific offence of corporate manslaughter in “Reforming the Law on Involuntary Manslaughter: The Government’s Proposals (May 2000)”
2.4 However since the enactment of the 2007 Act, an attempt to ratify this situation has been made and there is no longer a need to show a controlling mind. Instead, the prosecution only needs to prove that the senior manager was in a breach of duty or was substantially involved in the organization’s breach of duty , thereby replacing the doctrine of identification with the “senior – management rule”. However, this is easier said than done, as in reality it may be relatively easy to identify the controlling mind behind a small business as in the Lyme Bay Canoe Tragedy where the sole owner of the business was successfully convicted along with the company and charged a £60,000 fine for corporate manslaughter on the basis of his gross negligence leading to the death of four teenagers. However, to determine who is responsible for the acts committed in a large business, consisting of complex organizational structures, is till date an extremely challenging notion, as seen in the 1980’s famous case of the Herald of Free Enterprise . In this case, the company was responsible for the deaths of 192 people, due to a failure of the ferry’s door being closed, causing the deck to be flooded. The company was not convicted for corporate manslaughter as the prosecution could not establish that the act committed was a result of any particular individual’s “controlling mind”, and therefore unable to hold an individual responsible along with the company .
3. Analyzing the Corporate Manslaughter and Corporate Homicide Act 2007
According to the 2007 Act, a person’s death, caused by a corporation, due to its activities being managed in a way, that amounts to a gross breach of the relevant duty of care (i.e. falling below what can be reasonably expected of the organization in the circumstances) owed by the organization to the deceased, is termed as Corporate Manslaughter. This is indictable only in the High Court , with penalties including hefty fines, along with remedial orders, and/or publicity orders, subject to the courts discretion. It may be argued that in comparison to the penalties imposed on ordinary individuals such as imprisonment, corporations tend to get off quite easily with fines that will generally not make much of a difference. It is highly unlikely that the failure to fulfill those fines would lead to the closure of the said corporations for failing to meet the standard set for it .
4. Effectiveness of the 2007 Act
Over the decade, a large number of claims have reached the doors of the court, with adequate proceedings taking place. However, out of those, only a small number have, in fact, resulted in a successful conviction, thus far. It is arguable based on the series of case law referred below, that courts have often been seen to be reluctant in prescribing convictions, as a result of which, corporations often being let off the hook simply by paying off the fines levied upon them. This has been the case far before the enactment of the 2007 Act, as seen in 2003 case of Transco , where a gas line company was let go by paying a fine of £15 million for the death of a family of four.
Furthermore, ‘The Clapham Rail Disaster’ is another example of corporations being let go with only having to pay a fine of £1 million, even though the disaster caused by the collusion of multiple trains, due to the negligence of the technical staff, resulted in over 35 deaths and a number of injuries. The company was found liable to only a limited number of the claims brought forward by the victims’ families. However, there were no convictions for corporate manslaughter . These cases beg to question whether we are putting a price on the lives of people. If so, how do you determine the value of each life lost? Nonetheless, it can be argued that the courts are bound statutorily and can only do so much.
However, the first ever conviction under the 2007 Act of R v Cotswold Geotechnical [Holdings] Ltd , showed a ray of hope. A company faced a £385,000 fine under the corporate manslaughter law following the death of Alexander Wright who died when a 3.2 meter pit collapsed on him while collecting soil samples for a development . Although the fine was quite lower than that prescribed under the Act’s sentencing guidelines , it was a lot more than what the company could afford. The Court of Appeal ruled that the courts have the power to force a company into liquidation .
Moreover, 15 months after the first ever conviction under the 2007 Act, a second conviction in R v JMW Farms Ltd [2012] was issued on 8thMay 2012 against JM Farms Ltd where a £187,500 fine was levied at Belfast’s County Court for safety failings, which led to the death of an employee, Mr. Robert Wilson, in 2010, when the company’s meal- mixing farm was struck by a metal bin, which fell from a raised forklift onto Mr. Wilson’s head, causing him fatal head injuries. The company pleaded guilty to breaching the 2007 Act and in addition was ordered to pay £13,000 in costs .
Following these were a series of convictions flowing out from the courts illustrating the effectiveness of the 2007 Act. In particular, the seriousness of the offence, and the courts willingness to follow through on convictions, regardless of the long proceedings, were illustrated.
In 2012, merely two months after the conviction in R v JMW Farms Ltd, another company was convicted of corporate manslaughter in R v Lion Steel Equipment Ltd . In this case the Crown prosecution services had originally brought charges against the company under section 2 and 33 of the HSWA 1974, as well as charges of gross negligence manslaughter and breaches of s37 HSWA 1974 against three of the firm’s directors. However, following a submission of ‘no case to answer’, the directors were acquitted of their charges. The company subsequently pleaded guilty to corporate manslaughter to which the Crown Court of Manchester ordered the company to pay a fine of £480,000 for the death of their worker Steven Berry in 2008, who fell through a fragile roof light at the company’s premises after checking the source of the leak. The courts also ordered the company to pay an additional £84,000 towards CPS’ costs payable over four years.
Furthermore, R v J Murray & Sons Ltd was the fourth ever case to be successfully charged under the 2007 Act. The courts imposed a fine of £100,000 as well as the prosecution costs amounting to £10,000 on the company following a guilty plea by the company for the death of their employee Norman Porter. Norman died due to the negligence of the company as they had removed the safety panels from the blending machine for their own convenience leaving the machine exposed and thus contributing towards Mr. Porter’s death .
A month after the J Murray case, the tragic story of an 11 year old girl Mari- Simon reached the courts. Mari had died due to the negligence of a water sports firm, who failed to provide adequate supervision at an inflatable ride . As a result, when the girl fell, the boat driver failed to notice and ended up hitting her with the speedboat, causing her fatal leg wounds. Interestingly, the judge stated that the fine was limited by the company’s lack of assets, thus proposing to fine the company “every penny it had” .
4. Conclusion
The effectiveness of the Corporate Manslaughter and Corporate Homicide Act 2007 has shown to be effective, although not of the same gravity as initially intended, however, it has gradually made a considerable impact on the whole as corporations have become diligent in ensuring safety standards as per the regulations of the HSWA 1974. Moreover, courts have also become much more stringent with the implementation of the 2007 Act and spare no corporation for breaches leading to a death, as can be seen from the case of Semelia Campbell . The case involved a five year old who took her last breath before her mother in a crying plea to be saved when she was stuck in an automated gate and could not be rescued. The courts imposed a £50,000 fine on the company. It is important to consider that although corporations are brought to justice by courts, it is however, the families that have to pay the ultimate price .
To say that the 2007 Act has not been effective based on the fact that since its incorporation very few prosecutions have surfaced would be wrong. It is not that the courts are reluctant in finding corporations guilty for the deaths being caused due to their negligence, but in fact, the truth is that proceedings take time and money and they are not something that can be dealt with in a week. Even if these cases are dealt with in the fast track they will still take time and will be dealt with in their due course. In 2016 only, several new cases involving a charge of corporate manslaughter have reached the courts, thus proving the effectiveness of the Corporate Manslaughter and Corporate Homicide Act2007.
As the number of prosecutions under the 2007 Act reaches a high rise, many commentators have stated that the law on Corporate Manslaughter has gathered momentum. This can be seen by the prosecution of Sherwood Rise ltd , where the negligence of an employee led to the death of Ivy Atkin. The care home company had subsequently been fined £30,000 after pleading guilty to a charge of corporate manslaughter.
With successful prosecutions taking place, companies are reminded of the penalties attached to them and the possible extension of liabilities towards individuals of the company. Companies are therefore advised to consider their own risk assessment policies and procedures.