CHAPTER 2

Criminal Legislation

The Corporate Manslaughter and Corporate Homicide Act 2007

The majority of countries allow corporate bodies to be held accountable for homicide under general criminal law but the United Kingdom is one of the few jurisdictions¹ to have created a specific corporate homicide offense. The Corporate Manslaughter and Corporate Homicide Act (CMCHA) came into force on 6 April 2008² (with the exception of the provision relating to liability for death in custodial institutions which was brought into force on September 1 2011).³ The offense was designed to secure a conviction of an organization, whether small family business, large multinational company or public body, for a criminal offense that properly reflected the seriousness of the worst instances of management failure causing death. The Act is not retrospective and therefore only applies to offenses committed on or after the Act came into force. There are no new duties or obligations under the Act, and although it is linked to existing health and safety requirements it is not part of health and safety law.

In the United States, although corporations are capable of committing criminal offenses governed by federal law, corporate manslaughter is not a specific criminal offense at this level. The Occupational Safety and Health Act 1970 is the only federal statute on the context of manslaughter but this Act relates to safety and health in the workplace by imposing comprehensive duties on employers as opposed to governing an explicit offense of manslaughter.

The penal codes of individual states may provide organizations be indicted for the offense of homicide by defining the word “person” in the offense to include corporations. For example, the Penal Code of California expressly states that “person” includes a “corporation as well as a natural person.”⁴ The New York Penal Code states that “a person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.”⁵ The homicide section of the Penal Code provides that the victim must be a “human being who has been born and is alive”⁶ but does not define the perpetrator. However, in the general definition of terms “person” is stated as meaning “a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality.”⁷ In the case of People of the State of New York v. Ebasco Services Incorporated,⁸ the court rejected the argument that the reference to human beings in the homicide section meant that a corporation could not commit homicide, and taking note of the Penal Code’s general definition of terms confirmed that a corporation could be indicted for corporate homicide.⁹

Alternatively, states may provide for organizations to be liable for manslaughter under the common law. For example, in the State of Michigan, a corporation may be liable for involuntary manslaughter where it can be shown that the victim’s death was caused by the defendant’s “gross negligence.”¹⁰ The Michelin Penal Code states that unless there is a contrary intention the word “person” includes public and private corporations, co-partnerships, and unincorporated or voluntary associations.¹¹ However, under the penal codes of individual states, there is no specific offense of corporate manslaughter which relates only to organizations.

The Offense of Corporate Manslaughter/Corporate Homicide

CMCHA creates an offense which in England, Wales, and Northern Ireland is known as corporate manslaughter and in Scotland as corporate homicide. Organizations to which the Act applies can no longer be convicted of the common law offense of gross negligence manslaughter.¹² The Act provides¹³ that a relevant organization may be convicted of corporate manslaughter if the manner in which its activities are managed or organized causes a death and amounts to a gross breach of a duty to take reasonable care for a person’s safety. A substantial part of the breach must have been attributable to senior management failure in the organization. The offense only applies where an organization owes a “relevant duty of care”¹⁴ to the deceased person.

The offense is set out in CMCHA Section 1(1):

“An organisation to which this section applies is guilty of an offence 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 organization to the deceased.”

Section 1(3) states: “An organization is guilty of an offence under this section only if the way in which its activities are managed or organized by its senior management is a substantial element in the breach referred to in subsection (1).”

What Types of Organizations Are Covered by the Act?

Section 1(2) defines four types of organization, which can commit the offense of corporate manslaughter:

• A corporation
• A department or other body listed in schedule 1
• A police force¹⁵
• A partnership or trade union or employers’ association (if the organization concerned is an employer)

Corporations (incorporated in the United Kingdom or overseas) include public and private companies, limited liability partnerships, and bodies incorporated by statute or Royal Charter such as local authorities and National Health Service bodies. Charitable and voluntary organizations that have been incorporated or operate as partnerships are also potential defendants. CMCHA Schedule 1 lists 48 government departments or other bodies including the Cabinet Office, Home Office, Ministry for Defence, and Crown Prosecution Service. The usual principle that states Crown bodies, such as government departments, cannot be prosecuted does not apply to corporate manslaughter.¹⁶ In addition, the list of organizations to which the offense applies can be extended by secondary legislation.¹⁷ As police forces are not incorporated bodies, CMCHA ensures that police forces are treated as occupiers of premises, and police officers, police cadets etc., are treated as the employees of the police force for which they work.¹⁸ Partnerships (other than limited liability partnerships) do not in English law have legal personality but under the Act they are treated as corporate bodies and proceedings can be brought against the partnership with fines paid out of partnership funds.

The Act does not apply to individuals and individuals cannot be guilty of aiding, abetting, counselling, or procuring the offense.

Relevant Duty of Care

The organization must owe a duty of care to the deceased victim under the law of negligence. A duty of care is an obligation of the organization to take reasonable steps to protect a person’s safety. CMCHA does not impose new duties of care where these are not currently owed in the law of negligence. Organizations owe duties, not just to their employees, but also to a broad range of others affected by their activities. The duty of care must also be a “relevant duty” under the Act. These are set out in Section 2 and fall into four main categories:

• Employing or controlling workers¹⁹: This includes an employer’s duty to provide a safe system of work for his employees. An organization may also owe duties of care to those whose work it controls or directs even though they are not formally employed by it, such as contractors or volunteers.
• Occupying premises²⁰: This covers duties of care in law, both to visitors and non-visitors such as trespassers.
• Supplying goods or services, undertaking construction or maintenance operations or any other activity on a commercial basis: This includes duties owed by manufacturers to ensure the safety of their products, duties owed by National Health Service bodies for medical treatment, duties to ensure adequate safety precautions are taken when repairing a road, or maintaining the safety of vehicles, or carrying on commercial activities such as farming or mining.
• Holding a person in detention or custody²¹: This includes persons detained in a prison, a police station, or in immigration detention facilities; being held or transported under immigration or prison escort arrangements; being placed in premises used to accommodate children and young people on a secure basis; and being detained under mental health legislation.

Whether a duty of care exists is a matter of law for the judge to decide (as opposed to the jury). The “judge must make any findings of fact necessary to decide that question.”²² The judge will then direct the jury as to the existence of the duty of care. It will then be up to the jury to decide if there was a breach of the duty of care and if so how serious that breach was and “how much of a risk of death it posed.”²³

Causation

The offense of corporate manslaughter requires that the way an organization managed or organized its activities caused the death. The “way” does not have to be unlawful and includes decisions and actions as well as omissions of management. The management failure need not have been the sole cause of death provided it is “a” cause of death, and the “cause of death” was as a result of a gross breach of a relevant duty of care.

What Is a Gross Breach?

CMCHA states that a breach of a duty of care is a “gross breach” if the conduct in question “falls far below what can reasonably be expected of the organization in the circumstances.”²⁴ This reflects the threshold for the common law offense of gross negligence manslaughter.²⁵ Whether the breach is “gross” is a question for the jury who must consider whether the organization failed to comply with relevant health and safety legislation and if so, how serious the noncompliance was and how much of a risk of death it posed.²⁶ In addition, the jury may consider further factors such as the health and safety guidance and how far they were followed, the organization’s safety culture and their attitudes, policies, systems, and accepted practices.

Who Is Senior Management?

For a conviction of corporate manslaughter under CMCHA, there is no need to show a “controlling” or “directing” mind at the top of the company was also personally guilty of manslaughter; however, an analysis of an organization’s decision-making processes which led to the death is an important part of the picture. The prosecution must show that the way in which senior management organized or managed the organization’s activities was a substantial element in the breach²⁷ and therefore may aggregate the management failure.²⁸ The Act defines senior management as persons who play “significant roles” in making decisions about, or in actually managing or organizing, the “whole or a substantial part” of the organization’s activities.²⁹ This clearly includes those in central strategic or operational management roles, or with central responsibility for regulatory compliance, but exactly who else is included will depend upon the nature and scale of the organization’s activities. It may include regional managers of national organizations and managers of different operational divisions.³⁰ The prosecution does not have to prove that the individual senior managers were in breach of duty but only that collectively senior management played a substantial part of the organizations breach.

A parent company will not be liable for the actions of its subsidiaries unless the breach that was the cause of death was sufficiently attributable to senior management failures in the parent company. The degree of control and supervision exercised by the parent company over the subsidiary is relevant. In June 2015, CAV Aerospace Ltd, the parent company of CAV Cambridge, was convicted of corporate manslaughter, despite the fact that the incident which led to the fatality occurred within the subsidiary.³¹ Charges were brought against the parent company “due to the collective failings in the management and control of CAV Cambridge Ltd,” and because all operational decisions regarding the purchasing, delivery, and storage of materials fell within the responsibility of the parent company which had ignored persistent warnings about the dangers of falling stacks of materials in the three years prior to the fatal incident.³²

Territorial Extent of the Act

The offense applies if the harm resulting in death is sustained in the United Kingdom or in a set of limited contexts outside the United Kingdom namely, within the United Kingdom’s territorial waters (for example an incident involving commercial shipping), on a British ship, aircraft or hovercraft, or on an oil rig or other offshore installation already covered by the U.K. criminal law.³³ It is the injury that caused the death that has to occur within the United Kingdom’s jurisdiction rather than the death itself. It is not only British organizations that may be liable under the Act but all relevant organizations operating in the United Kingdom even if incorporated outside the United Kingdom. Provided the injury that caused the death was within the United Kingdom’s jurisdiction, the management failure or breach of the relevant duty can have occurred outside the United Kingdom.

Where a company incorporated outside the United Kingdom, is operating through a locally registered subsidiary, it is likely that the subsidiary, where the fatality occurred, will be the relevant organization to face prosecution for corporate manslaughter as companies within a group structure are separate legal entities. However, this does depend on all the circumstances of each case and a parent company, taking operational decisions for its subsidiary, can be held liable for corporate manslaughter.

Exclusions from the Act

There are a number of exclusions set out in CMCHA covering deaths connected with certain public and government functions³⁴; some of these exemptions are comprehensive and others are partial. Where a comprehensive exemption exists, the Act does not apply in respect of any duty of care that an organization might otherwise owe. Where there is a partial exemption the Act does not apply unless the death relates to the organization’s responsibility as an employer (or to those working for the organization) or as an occupier of premises.

Public policy decisions in respect of anything done in the exercise of an exclusively public function and in respect of statutory inspections are excluded, unless the public authority owes the duty in its capacity as an employer or as an occupier of premises. For example, decisions by public bodies or bodies with public functions³⁵ about the funding of particular health treatments are excluded. Certain activities performed by the armed forces³⁶ including “peacekeeping operations and operations for dealing with terrorism, civil unrest or serious public disorder, in the course of which members of the armed forces comes under attack or face the threat of attack or violent resistance”³⁷ are comprehensively excluded. This exemption extends to “related support and preparatory activities and hazardous training.”³⁸ In the light of the number of fatalities of armed forces personnel in noncombat incidents,³⁹ there have been calls for exemption to be removed in respect of certain training activities.⁴⁰ A similar comprehensive exemption is also given to the police and other law enforcement bodies such as immigration authorities, in respect of operations dealing with terrorism and violent disorder and their support and preparatory activities and training.⁴¹

In addition, there are partial exemptions from the offense other than in respect of the duty of care owed as an employer or occupier, for a range of activities. These include policing and law enforcement activities,⁴² emergency services responding to emergencies such as fire and rescue authorities, coastguards, NHS trusts, ambulance services, organ and blood transport services, and the armed forces.⁴³ Child protection activities and probation services are also covered by partial exemptions.⁴⁴

Prosecutions under Corporate Manslaughter and Corporate Homicide Act 2007

Prosecutions under CMCHA are complex and usually the incident has occurred a few years before reaching court. For example, in Cotswold Geotechnical Holdings Ltd, the accident occurred in 2008 and conviction secured in 2011, and in Cheshire Gates and Automation Ltd, the accident occurred in 2010 and conviction was secured in 2015.

Chart 2.1 Prosecution outcomes for corporate manslaughter under CMCHA (England, Wales and Northern Ireland)

Since the coming into force of the CHCMA on 6 April 2008, there have been 30 prosecutions and 25 convictions under the CMCHA. Although this represents a small proportion of the number of prosecutions brought as a result of fatalities at work,⁴⁵ (where the majority of prosecutions are for breaches under HSWA) the number of successful prosecutions against companies for manslaughter is significantly greater than under the previous common law regime.

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¹The Australian Capital Territory is also an exception. It introduced a specific industrial manslaughter offense in the Crimes (Industrial Manslaughter Act) 2003. P. Almond. 2013. Corporate Manslaughter and Regulatory Reform (Basingstoke Hampshire: Palgrave Macmillan), pp.35-37.

²The Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No. 1) Order 2008 SI 2008/401.

³The Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No. 3) Order 2011 SI 2011/ 1867. Implementation of the clause covering custody deaths was delayed in order to give police forces and prison services time to inspect their custody facilities and make sure they were up to standard.

⁴California Penal Code s7.

⁵New York Penal Code s125.10.

⁶New York Penal Code s125.05.

⁷New York Penal Code s10.00 (7).

⁸People of the State of New York v. Ebasco Services Incorporated 77 Misc.2d 784 (1974).

⁹The indictment was in fact dismissed on the grounds that there had been a failure to sufficiently particularize the facts constituting the alleged crime.

¹⁰G. Forlin.2014. Corporate Liability: Work Related Deaths and Criminal Prosecutions (London: Bloomsbury) p.450.

¹¹Michigan Penal Code s10.

¹²CMCHA 2007, s20.

¹³CMCHA 2007, s1 (1).

¹⁴CMCHA 2007, s2.

¹⁵A police force is defined as one within the meaning of (a) (i) the Police Act 1996 (c. 16), or (ii) the Police (Scotland) Act 1967 (c. 77); (b) the Police Service of Northern Ireland; (c) the Police Service of Northern Ireland Reserve; (d) the British Transport Police Force; (e) the Civil Nuclear Constabulary; and (f) the Ministry of Defence Police (CMCHA 2007, s13).

¹⁶CMCHA 2007, s11.

¹⁷CMCHA 2007, s21.

¹⁸It is the Chief Constable of a force who is liable as a corporation sole where there is a prosecution under HSWA 1974.

¹⁹Between April 2008 and March 2016 in the United Kingdom, there were over 1200 recorded fatalities of workers in the workplace http://www.hse.gov.uk/statistics/, (accessed April 12 2017).

²⁰Premises are defined as a tract of land including buildings and movable structures.

²¹This provision was brought into force September 1 2011 by the Corporate Manslaughter and Corporate Homicide Act (Commencement No 3 Order) SI 2011/1867.

²²CMCHA 2007, s2 (5).

²³CMCHA 2007, s8 (2).

²⁴CMCHA 2007, s1 (4) (b).

²⁵R v. Adomako [1994] 3 WLR 288.

²⁶CMCHA 2007, s8.

²⁷CMCHA 2007, s1 (3).

²⁸In R v. Sterecycle (Rotherham) Ltd (2014) (unreported) the prosecution relied on the aggregate failures throughout the company as opposed to specific acts of individuals. https://www.healthandsafetyatwork.com/corporate-manslaughter/sterecycle-michael-whinfrey, (accessed May 5 2017).

²⁹CMCHA 2007, s1(4)(C).

³⁰Ministry of Justice. 2007. Guide to the Corporate Manslaughter and Corporate Homicide Act 2007. https://www.publications.parliament.uk/pa/cm201516/cmselect/cmdfence/598/598.pdf, , (accessed May 6 2017).

³¹The company was also convicted of breach of sections 3(1) and 33(1)(a) of the Health and Safety at Work etc. Act 1974. http://www.cps.gov.uk/news/latest_news/cav_aerospace_ltd_convicted_of_corporate_manslaughter/, (accessed May 3 2017).

³²The victim died after a stack of metal sheets collapsed on top of him in a warehouse in Cambridge, trapping and crushing him. The metal sheets, which had been delivered to the warehouse at the company’s request and for the company’s purposes, collapsed as a result of the dangerously high levels of stock in the warehouse. https://www.healthandsafetyatwork.com/corporate-manslaughter/CAV-aerospace-paul-bowers http://www.tetraconsulting.co.uk/parent-company-convicted-corporate-manslaughter/,(accessed May 3 2017).

³³CMCHA 2007, s28.

³⁴CMCHA 2007, ss3-7.

³⁵Public authorities are defined by reference to the Human Rights Act 1998 and include core public bodies such as government departments and local authorities as well as other bodies whose functions are of a public nature. Private companies that carry out public functions are broadly the same position as public bodies.

³⁶British Royal Navy, Army and Air Force.

³⁷CMCHA 2007, s4 (2).

³⁸ CMCHA 2007, s4, s5 (1), s5 (2).

³⁹ Between 1 January 2000 and 20 February 2016, 135 armed forces personnel died in non-combat incidents, mainly on training exercises. http://www.theguardian.com/uk-news/2016/apr/24/ministry-of-defence-should-lose-crown-immunity-say-mps, (accessed April 25 2017).

⁴⁰ U.K. Parliamentary Defence Select Committee. 2016. Beyond Endurance? Military exercises and the Duty of Care.HC598. The Report was emphatic that it was wrong for the Ministry of Defence and armed forces to have exemption under the CMCHA where there had been serious findings in hazardous training and section events resulting in a fatality. https://www.publications.parliament.uk/pa/cm201516/cmselect/cmdfence/598/598.pdf, (accessed May 5 2017). The Government Response to the Committee’s Report was negative. http://www.parliament.uk/business/committees/committees-a-z/commons-select/defence-committee/defencesubcommittee/inquiries/parliament-2015/inquiry/, (accessed May 5 2017).

⁴¹CMCHA 2007, s5 (2).

⁴²CMCHA 2007, s5 (3).

⁴³CMCHA 2007, s6.

⁴⁴CMCHA 2007, s7.

⁴⁵http://www.hse.gov.uk/prosecutions/, (accessed May 9 2017.).