It has been ten years since the enactment of the Corporate Manslaughter and Corporate Homicide Act 2007 (“CMCHA”). While the enactment has changed the legal landscape of corporate killing in the United Kingdom (and indeed, a much warranted deterrent to “lax health and safety practices”), the inherent ambiguities in the provisions render the legislation not entirely unimpeachable. In fact, the Act’s complexity has been subject to close scrutiny from academics for the past decade. This article will briefly address some of the potential uncertainties in the Act, and ultimately shed light on the possibility for a more holistic health and safety regime.
Contextual analysis
The inability of the common law offence of gross negligence manslaughter to cope with death arising from corporate negligence has, in much anticipation, prompted the enactment of CMCHA. While the Act was created to eradicate the deficiencies of the common law system, it has also remarkably widen corporate criminal liability by “removing doctrinal barriers”. Pursuant to section 1(1) of the CMCHA, a corporation is thus guilty of corporate manslaughter “if the way in which its activities are managed or organised
(a) causes a person’s death, and
(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased” (note the almost all-encompassing definition of “organisation” in section 1(2)).
In particular, the offence can only be established if the management failure is committed at the senior management level, which constitutes a “substantial element in the breach”. This requirement has, on the outset, brings clarity to the law. By removing the need to associate the breach with one or more particular directors of the organisation, the difficulty in satisfying the “legal test of identification” in the common law offence of manslaughter has been largely overcome. However, the unclear definitions of “senior management” has proven to be highly questionably for successful prosecution of corporate killing.
Senior management
“Senior management” has been defined in CMCHA as the persons who play significant roles in -
(1) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised or
(2) the actual managing or organising of the whole or a substantial part of those activities.
While the term is, as one would say, clearly defined in the Act, the scope of “senior management” remains entirely uncertain. Academics have criticised the concept of being “low on definitions” and “vague”. Concerning the often “diffuse” and multiplex nature of hierarchical structure in large corporations, does the “senior management” test suffice to indicate the source of management failure? Or as Gobert suggested, have we merely returned to the problematic identification doctrine in common law offences, which prosecutions had found it, prior to the enactment of CMCHA, manifestly difficult to establish the evidential basis of gross negligence manslaughter? In fact, the functionality of the “senior management” test has not been thoroughly examined, as successful convictions have “overwhelmingly been of micro-, small or occasionally medium-sized organisations”. Luckily, the court in R v Cornish (Errol) was able to provide some guidance on the test in relation to cases involving organisations with complex organisational structures.
R v Cornish (Errol)
In what was considered as a landmark case under the CMCHA (also the first prosecution of a health service body since the implementation in 2008), Justice Coulson clarified the prosecution’s responsibility in satisfying the “senior management” test. Instead of discerning the specific “controlling mind”, the prosecution would have to identify “the lowest level of the senior management team…that is culpable of this offence” - in other words, any management below the level indicated would be irrelevant to the case at hand. This can be seen as circumventing the problematic identification doctrine in the common law position prior to the enactment of CMCHA. Yet, more judicial opinion on this test should be expounded, and it is worth noting that R v Cornish is only a judgment at the Crown Court level.
Up until September 2017, there had only been 25 successful corporate manslaughter convictions in the United Kingdom. Though it is submitted that the “senior management” test should be put under more rigorous examination, perhaps the case of R v Cornish (Errol) indicates the need to have the test further developed/explored in cases regarding large corporations.
Jamie Pang
Criminal Law Section Editor
6 January 2019
Bibliography:
R v Cornish (Errol) [2015] EWHC 2967 (QB), [2015] 10 WLUK 444
Field S, “Ten years on: the Corporate Manslaughter and Corporate Homicide Act 2007: plus ca change?” (2018) 29 ICCLR 511
Gobert J, “The Corporate Manslaughter and Corporate Homicide Act 2007: Thirteen years in the making but was it worth the wait?” (2008) 71 Modern Law Review 413.
Roper V, “The Corporate Manslaughter and Corporate Homicide Act 2007 - a 10-year review” (2018) 82 J Crim L 48
Tombs S, “The UK’s corporate killing law: Un/fit for purpose?” (2018) 18 Criminology and Criminal Justice 488.
Trevelyan L, Fatally Flawed? (Law Society Gazette 2005)
Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are listed in the bibliography above.