Publications

The Corporate Manslaughter Act: one year on

The Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008 with much fanfare. The Act was held to open a new era in which not only business leaders but corporate bodies or organizations’ themselves would at last be brought to book in the criminal courts for acts of gross negligence causing death to employees and others.

The rationale behind the Act

Prior to the Act prosecutors needed to identify a single directing mind at the head of the company who could be found personally liable for gross negligence/ manslaughter before the company could also be convicted. It was very rare to find this level of direction with most cases of companies causing death being the consequence of a whole chain of petty defaults and accidents. One consequence of this was that the larger the company and the more complex its management structure then the more difficult it was to mount a prosecution. The Act therefore enables courts to consider the wider picture by looking collectively at the actions of management. The company could then be more easily prosecuted and penalised, translating into hefty fines based on turnover as well as the prospect of adverse publicity.

But has the new Act made any impact or was it made solely to assuage public opinion after a number of high profile corporate death cases?

The Act in Practice

Firstly, despite all the build-up leading up to the act coming into force it was always envisaged that the legislation would be used rarely and the old structure of prosecutions against responsible directors under the Health and Safety legislation would continue unabated. It was anticipated that there would only be about a dozen cases a year under the new Act - the difficult cases which had previously “slipped under the net”. Despite this modest intent some commentators were still expecting the level of prosecutions to soar - but this has simply not happened. In fact, to date there have been none.

Lack of Success so far

Why is this?  The main obstacle is the fact that under the Act no prosecution can be brought for an accident that occurred before the Act became law in April 2008 so a large number of potential cases have “missed the boat”.  However, this is probably a short term effect and one would expect the volume of cases to start to build up in 2009. Of course it is early days but there is little sign yet that there is a build up of cases.

Secondly, it might be that the police are not sufficiently geared up to conducting the detailed investigations required by the Act. To mount a successful prosecution the police will have to look at complicated company procedures and may need to draw on other government agencies such as the Health and Safety Executive for support.

Another reason might also be that prosecutors are continuing to rely on the existing sub-structure of Health and Safety Legislation to bring cases - legislation which they are used to using and which they regard as “user friendly”.  In fact, this prior legislation has been beefed up by the Health and Safety (Offences) Act 2008 which has not only significantly increased the level of fines available to Courts but has also introduced the option of imprisonment.

Looking to the Future

It is still too early to accurately judge the impact of the Act. So far the hype that attended the passing of the act into law has not yet been justified. But the Act should not be written of as being lame. When the first high profile corporate death case comes along (and sadly and inevitably one will come along) then the Act will be there ready and waiting.

Author: David Malamatenios

Publication: HR Magazine

Date: March 2009