The Corporate Manslaughter and Corporate Homicide Act 2007 (the “Act”) came into force on 6 April 2008 with the main objective of making it easier for large companies to be prosecuted and convicted of corporate manslaughter. This article explores whether the Act has been successful in achieving its objective, almost 6 years on.
Why was the Act introduced?
Prior to the Act, a company could only be convicted of corporate manslaughter under the common law if a “directing mind”, that is, a person who is the embodiment of a corporation had a close personal responsibility for the act or omission which caused the death. If there was insufficient evidence to convict such an individual then the company would be acquitted of manslaughter. This approach was known as the “identification principle”.
The identification principle became the victim of heavy criticism and growing pressure for reform began to mount. Prior to the Act coming into force, there had only been six corporate manslaughter convictions, all of which related to small companies. Identifying the directing mind within a large company with complex multi layered structures proved to be a much harder task than finding the directing mind within a small company. This criticism was exemplified by the Herald of Free Enterprise Ferry disaster in 1987 and the Southall rail disaster in 1997. Both disasters failed to bring a corporate manslaughter conviction, due to the prosecutions failure to successfully identify a directing mind that was individually liable for gross negligence manslaughter.
What does the Act do?
Under the Act an organisation will be guilty of corporate manslaughter if the way in which its activities are managed or organised –
- causes a person’s death; and
- amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
An organisation will only be guilty of corporate manslaughter if a substantial element of the breach was caused by the way the company’s senior management managed or organised its activities.
Senior management is defined within the Act as persons “who play significant roles in the making of decisions about how the whole or a substantial part of its activities are to be managed or organised; or the actual managing or organising of the whole or a substantial part of those activities.” Unhelpfully the word “significant” is not defined by the act.
Does the Act meet its objectives?
Hailed by some as a “landmark in law”, initial levels of enthusiasm for the Act have now been outweighed by the growing voice of scepticism. Almost six years on and only five convictions for corporate manslaughter have been achieved, none of which were against a large company.
Critics argue that the “identification principle” is still at the core of the Act and the task of identifying the culpable directing mind has merely been transformed to the task of identifying the culpable senior management. This, in effect, does widen the scope of who may be convicted under the Act, as unlike the previous common law approach, the actions of the senior management can be aggregated together so that the senior management’s failings are viewed collectively as opposed to individually. However, the issue still remains that it is much harder to identify senior management within large companies with complex multi-layered structures than smaller sized companies.
Through the filtration of responsibilities from senior management to middle or junior management, large companies may still be able to escape the grasp of the Act. Junior management who begin to carry out the same work as senior management without having their job titles changed, may throw a spanner into the legislation’s works, as prosecutors struggle to provide sufficient evidence to show that a substantial element of the breach was caused by the way the company’s senior management managed or organised its activities.
In conclusion, a case involving the prosecution of a large company with a complex managerial structure has yet to make its way into court. Until that day we can only speculate as to whether the Act will be successful in achieving its objective. The wording of the act, and how wide an interpretation the courts give to the word “senior management” will ultimately determine whether the Act is capable of applying to a large company. The Act has cast a wider net than the identification principle, but whether it is wide enough has yet to be determined.