The Law Months, Part I: Corporate Manslaughter

The Corporate Manslaughter and Corporate Homicide Act 2007 created the offence of corporate manslaughter. To what extent has this Act achieved its aims?

This question is about corporate criminal liability, in particular the criminal act of corporate manslaughter. In this essay I will identify relevant principles of law, statute and case law to analyse the effectiveness of the CMCHA 2007.

The foundation of company law is that companies have separate legal personalities (Salomon v Salamon & Co.) and thus can be liable for criminal offences. However, they also have artificial personality, making it hard to convict them for offences that had been drafted with humans in mind. For example, a company cannot commit the actus reus (guilty act) for a physical offence due to its artificial personality, demonstrated in the case of Richmond Upon Thames LBC v Pinn & Wheeler – illegal driving.

Traditionally, the court has used the ‘identification’ or ‘directing mind’ principle to ascertain the mind-set of one person identifiable with the company (generally a director) and attribute the mens rea (guilty mind) to the company on this basis. This principle of attribution is illustrated in Tesco Ltd. v Nattrass. This made it easier to convict smaller private companies of criminal offences as it was often much easier to identify the ‘directing mind’ of the company, but much harder to prosecute larger companies. This was particularly controversial in the case of manslaughter, as relatives of victims wanted justice, but this was rarely the case.

Pre-2007, manslaughter by gross negligence was the grounds on which the Crown would prosecute the company. Manslaughter by gross negligence was where a company caused a death without possessing the mens rea for murder i.e. accidental death. Before the enactment of the CMCHA 2007, only 8 companies were successfully prosecuted for manslaughter by gross negligence – all of which were small companies with an easily identifiable individual within the company to attribute the offence (for example R v Jackson Transport (Osset) Ltd.). In contrast, it was almost impossible to prosecute larger companies whose much larger and wider scale activities caused (multiple) deaths (R v Balfour Beatty Rail Infrastructure, P&O Ferries (Dover) Ltd.). In both of these cases, the court did not allow the aggregation of the mental state and actions of more than one individual to hold the company responsible.

There was a public outcry for more measures to be created to enable the courts to prosecute larger companies for manslaughter. This led to the Law Commission Report on Involuntary Manslaughter 1996, and has now been enacted in the Corporate Manslaughter and Corporate Homicide Act 2007. This Act created the corporate criminal offence of ‘corporate manslaughter’. Section 1 of the Act states that a company commits this offence if the manner in which its activities are organised or managed cause a death (s.1(a)), or amounts to a gross breach of a duty of care owed to the deceased (s.1(b)). Similarly, the way the activities are managed by senior management must play a substantial element of the breach (s.1(3)), and the conduct causing the breach must fall far below reasonable expectations (s.1(4)). However, a company will be acquitted where a death has occurred but reasonable safeguards have been implemented for the management of the activity.

The CMCHA 2007 has replaced the ‘identification principle’ with the need to identify ‘senior management’, defined in s.1(4)(c) as “the persons who play significant roles in (i) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised, or (ii) the actual managing or organising of the whole or a substantial part of those activities”. This may be argued to be an improvement on the old law as it broadened the scope from identifying a ‘directing mind’ to the need to idendity ‘senior management’ (R v Cotswold Geotechnical Holdings Ltd.). However, it is generally considered still too narrow, particularly in relation to very large companies with complex management structures – showing the need for further clarification as to what is considered to be ‘senior management’.

The case used to illustrate the use of corporate manslaughter (R v Cotswold Geotechnical Holdings Ltd.), has been heavily criticised as it was a small private company with 8 employees and an easily identifiable directing mind, and therefore could have been prosecuted under the old law. Similarly, due to the size of the company, there is no mention of how the ‘senior management test’ is to be applied, and thus we must wait for more cases involving larger companies. The fine given to the company was equivalent to 250% of its annual turnover, and this was confirmed by the Court of Appeal as “unfortunate” but “unavoidable”, begging the question of the level of fines that would be given to a large Plc.

In conclusion, the CMCHA 2007 has made it partially easier for the Crown to prosecute larger companies. However, the Act also creates a safeguard for the company in that s.1(b) requires a “gross” breach of duty. Therefore, provided the company implements robust health and safety measures and complies with strict legislation, the likelihood they would be successfully prosecuted is minimal. This shows that although some aims have been achieved, we still need to wait for cases involving larger companies with complex management structures for clarification as to how the courts will apply the new laws.

Click here for a downloadable copy of explanatory notes for each of the cases used in this essay.

Table of Cases

P&O Ferries (Dover) Ltd. [1991] 93 Cr App R 72

R v Balfour Beatty Rail Infrastructure Services Ltd. [2006] EWCA Crim 1586

R v Cotswold Geotechnical Holdings Ltd. [2011] EWCA Crim 1337; The Times, 20 July 2011

R v Jackson Transport (Ossett) Ltd. (unreported)

Richmond LBC v Pinn & Wheeler Ltd. [1989] RTR 354

Salomon v Salomon & Co. Ltd. [1897] AC 22

Tesco Supermarkets Ltd. v Nattrass [1972] AC 153 (HL)

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