The Corporate Manslaughter Act: Why only 2 prosecutions after 4 years?
23 January 2013
It is four years since the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) came into force. At the time there was much expectation about its ability to bring about better corporate accountability but has it succeeded? Jonathon Grimes discusses its impact
Previous attempts to prosecute companies following fatal accidents (Herald of Free Enterprise, Hatfield, Ladbroke Grove and others) had repeatedly ended in failure.
In the eyes of many, however, this expectation has not been realised. Only one company has been convicted (Cotswold Geotechnical Holdings Ltd in February 2011) with one further company due to stand trial in summer 2012 (Lion Steel Ltd). Concern about the low numbers of prosecutions was recently raised during Attorney-General's questions in parliament.
So what is the problem? Is it the case, as some have said, that the new law is complex and unworkable or are other factors at play?
It was always understood there would be a delay in cases reaching the Courts but this alone is not the answer. In the same period that there have been only two prosecutions for corporate manslaughter there have been at least 50 convictions of companies for health and safety offences arising from fatal accidents occurring since CMCHA came into force. Of course only the worst corporate failings will warrant a corporate manslaughter charge, whereas a very high proportion of fatal accidents result in prosecutions for heath and safety offences. Nonetheless it is hard to believe that of the hundreds of deaths at work that have so far occurred since CMCHA came into force only two have involved corporate failings sufficiently bad to warrant a charge of corporate manslaughter.
It is also right to acknowledge that the offence is relatively complex, in particular in its requirement that actions of "senior management" within a suspect company must be shown to be a "substantial element" in the breach causing death. In large companies, in particular, where there may be many layers between those directly responsible for the accident and senior management this may be hard to prove.
But many accidents involve small companies where this is no great obstacle.
In the Cotswold case for example there was a single Director and Shareholder who was involved in the day to day operations of the company.
So if these factors are not responsible for the small number cases then what is? A significant reason may be that the police, whose responsibility it is to investigate possible cases of corporate manslaughter, are both ill-suited to and ill-equipped for the challenge of such investigations.
The first problem is that the police are simply unused to investigating either fatal accidents (save in the area of road traffic accidents) or corporate offending. Both raise particular challenges. Fatal accident investigations often require pain staking and industry-specific forensic investigation. The Health and Safety Executive (HSE) are the acknowledged subject matter specialists in such
investigations with a wealth of experience and an army of experts in a range of
disciplines. Yet in the investigation of a potential corporate manslaughter they are relegated to a consultancy role while the police (by virtue of a longstanding
protocol for liaison between agencies that predates CMCHA) have primacy.
Moreover negligence, which is the mental element that lies at the heart of corporate manslaughter, is very different to the mental elements existing in other forms of criminal behaviour investigated by the police (generally "intent", "recklessness", or "knowledge"). Again, by contrast, HSE is much more familiar with negligencebased offending: the majority of health and safety offences result from a breach of a "duty of care" and a failure to do everything "reasonably practicable" to ensure safe systems of work. To these problems is added the fact that most police officers investigating fatal accidents have no previous experience of such investigations.
But the problem is not simply one of a lack of appropriate experience and expertise.
The police also lack the investigative tools that an agency like HSE. The "interview under caution" for example is a fundamental investigative tool used in almost every police investigation but is rendered largely ineffective as against a corporate suspect. A corporate suspect, obviously, cannot be arrested; it can only be invited to put forward a representative of the company to answer questions under caution and few companies are advised to accept that invitation - with little sanction. The HSE by contrast has the power to compel individuals to answer questions - a powerful tool for gathering evidence against companies.
Similarly, the police lack the power, without a search warrant, to enter premises and require the production of books or documents. To obtain one the police have to satisfy a Court that there are reasonable grounds for believing that an offence has been committed and that there is likely to be material on the premises that is relevant evidence and of substantial value to the investigation - a considerable burden. To achieve the same objective an HSE Inspector merely exercises the powers of compulsion granted to him under statute.
In short it is a curious state of affairs, no doubt the consequence of anachronous divisions of responsibility, that the burden of investigating the most serious and complex fatal accidents should fall on an organisation without relevant experience or expertise and lacking the necessary investigative tools to optimise its ability to gather the necessary evidence. Without some fundamental change the next four years are unlikely to see many more corporate manslaughter prosecutions. Jonathan Grimes specialises in health and safety law at Kingsley Napley Solicitors LLP.