The Corporate Manslaughter and Corporate Homicide Act 2007—A 10-Year Review

Abstract

This year will mark the 10th anniversary of the commencement of the Corporate Manslaughter and Corporate Homicide Act 2007. The Act was significant in that it introduced a specific offence for corporate killing in the UK for the first time. Such reform was generally welcomed, yet many academics and practitioners were critical of what they perceived to be the Act's unnecessary complexity and questioned how effective it would be. The Grenfell Tower fire has recently stimulated renewed debate about corporate manslaughter and the ability of the law to hold organisations and individuals to account. To engage meaningfully in this discourse, it is imperative to review the Act's performance in practice over the last 10 years. The author offers an original contribution to knowledge in this area through (i) fresh analysis of whether the criticism 10 years ago has proved to be well founded; (ii) scrutiny of the extent to which the Act has been successful in meeting its stated aims; (iii) critique of the judicial precepts in this area; and (iv) new insights into the future of corporate manslaughter including how the Act could be more efficacious. The statutory corporate manslaughter offence affords a superior basis of liability to the unwieldy common law offence that preceded it; there have been more prosecutions, higher average fines and its reach encompasses more than just micro/small companies. Conversely, the Act is simultaneously a disappointing compromise; fewer prosecutions than predicted, unjustifiable inconsistency in sentencing, a continued lack of individual accountability and a prosecutory preoccupation with a limited range of defendant. The introduction of new sentencing guidelines and recent case law developments, including the first fine measured in the millions of pounds, signal progress and have gone some way to address these inadequacies. Despite this, it is questionable whether the Act can rise to the challenge of securing convictions in relation to Grenfell Tower and similar factually complex tragedies. In order to fully capture and prevent the wide range of deaths within the Act's remit, it is clear that prosecutors need enhanced training and a willingness to embrace a holistic reconceptualisation of 'offender'.

Granting legal personhood to artificial intelligence systems and traditional veil-piercing concepts to impose liability

“…Comparing to another jurisdiction, Singapore, there is no similar provision but section 11 of Singapore's Penal Code 25 which deals with most criminal offences in Singapore, provides that the word "person" includes any company. Before the introduction of the UK's CMCHA, a company could only be convicted of corporate killing in the UK if a single employee of the company committed all the elements of the offence and was of sufficient seniority to be seen as embodying the "mind" of the company (Roper 2018). The example demonstrates how new laws may be enacted to remedy any lacuna.…”

Granting Legal Personhood to Artificial Intelligence Systems and Traditional Veil-Piercing Concepts To Impose Liability

“…Before the introduction of the UK's CMCHA, a company could only be convicted of corporate killing in the UK if a single employee of the company committed all the elements of the offence and was of sufficient seniority to be seen as embodying the "mind" of the company. 96 The example demonstrates how new laws may be enacted to remedy any lacuna. Hence, while company law principles have been retained to preserve the separate legal personality doctrine as emphasised in Salomon, 97 statutory remedies have been implemented to address the adverse effects of the doctrine.…”

Obscuring Corporate Violence: Corporate Manslaughter in Action

“…In some instances, a minority of fatalities reported to the HSE result in prosecutions under the Health and Safety Act or directors taken under health and safety law (Tombs and Whyte ); however, such convictions – some of which might have been pursued in lieu of a CMCHAct prosecution – proceed on the basis of strict liability rather than identifying mens rea , thereby lack the moral opprobrium of a ‘real’ criminal charge, a contemporary instance of what Carson () called the ‘conventionalization’ of factory crime. Further, none of these considerations encompass the tens of thousands of workers who die annually as a result of workplace exposures, deaths technically covered by the CMCHAct, but which seem to represent almost insurmountable evidentiary challenges (Roper ).…”

“…Further, there is little evidence thus far that the new law has lived up to expectations that it would make it easier to prosecute large, complex corporations: of the 26 convictions, 25 involved micro‐ or small companies, with only one of any significant size, CAV Aerospace, a parent company of some 460 employees and an annual turnover of £73 million. That said, the facts of the latter case were so egregious, and the evidence of senior management playing a substantial element in the gross breach at issue was so clear (Roper ), that this looks anomalous on a whole series of counts and does not establish the fitness for purpose of the new law (Tombs ).…”