The Problem With The Corporate Manslaughter & Corporate Homicide Act 2007

Submitted by Kirsty Matthewson

By Kirsty Matthewson

In the 18^th Century, Lord Chancellor, Edward, First Baron of Thurlow, expressed his frustration at pinning wrongdoing on slippery businesses;

“Did you ever expect a corporation to have a conscience when it has no soul to be damned and no body to be kicked?”

As a supposedly enlightened and media-literate people (or a bunch of folks hell-bent on putting business leaders in metaphorical stocks), we enjoy a culture of corporate governance that is shaped by ethics and systemic controls, where the corporation has a public face. The Baron’s aforementioned entity in its contemporary guise may not necessarily lose sleep about its status at St. Peter’s Pearly Gates, but it will invariably try to avoid a good kicking.

The Corporate Manslaughter and Corporate Homicide Act 2007 came into effect in April 2008, ‘though companies have been open to manslaughter proceedings since 1965.

Convictions under the Corporate Manslaughter and Corporate Homicide Act

The first conviction in February 2011 of Cotswold Geotechnical Holdings Ltd resulted in a fine of £385,000 -- £115,000 under the minimum fine suggested in the 2010 guidelines, due to its precarious financial position.

Cotswold Geotechnical Holdings is a relatively small company; the litmus test of the reach of the law would be when a substantial organization with an elaborate management structure is prosecuted.

For a successful conviction the following needs to be proven:

• That the defendant is an organization that causes the person’s death,
• That the duty of care owed by the organization was breached due to mismanagement of activities on a senior level and
• That the defendant must not fall within one of the exemptions to the Act (military operations, policing, emergency response, child protection work and probation to name a few).

Given that the first conviction resulted in nothing more than a fine, it would seem that holding iniquitous companies to account would be as easy as juggling salt. If a company has diffuse layers of management, assigning accountability takes you right back to grappling with the salt seller.

Assigning Liability

What corporate liability benchmark should be imposed when deciding if it is the company or the individual at fault? Fundamentally, the Act needs to show that its purpose, to streamline the accountability process for corporate manslaughter cases, is workable both with cases of clear liability and for those where multiple parties or contexts are involved.

The public, while sceptical of the fluidity of legal proceedings in the U.K., is generally in support of the onus of responsibility being held by business owners, and suspicious of junior employees being scapegoated to avoid penalty – in other words, of situations where corporations wriggle free after neglecting their health and safety obligations. Media proliferation and public demand for accountability in the face of disasters such as the Potters Bar train crash and the Costa Concordia have added to the clarion call for change.

The Network Rail Case

In December 2005, Olivia Bazlinton and Charlotte Thompson, aged 14 and 13 respectively, were killed instantly after being hit by a train at a level crossing at Elsenham station. Network Rail pleaded guilty to two charges under The Management of Health and Safety at Work Regulations and to one charge under the Health and Safety at Work Act.

A risk assessment conducted in May 2001 noted the wicket-gate pedestrian crossing was "undesirably risky," and a report three years prior to the incident had recommended automatic locking gates at the crossing, but this had never been acted on.

Despite the judge damning Network Rail with allegations of "corporate blindness" and acknowledging that the company “failed to ensure that the risks were properly assessed, controlled or managed,” no charges were made under the Corporate Manslaughter Act and the company was fined £1m within the aforementioned statutes.

So, to surmise, a public crossing with considerable footfall was allowed to remain for a number of years with inadequate safety measures, resulting in tragedy, the company admitted fault and still charges of corporate manslaughter were deemed inappropriate! Motivation indeed for large organizations to commit to governing their health and safety with an iron fist…not!

The Parcol Case

In July 2008 three year old Meg Burgess was killed when a wall designed by George Collier and constructed by his company, Parcol Developments, collapsed on to a footpath in Prestatyn, north Wales.

Rosemary Ainslie, lawyer for the Crown Prosecution Service (CPS), deemed that, as Mr Collier represented “only” half the company directors, it was not in the public interest to extend the charge to Corporate Manslaughter. This strikes me as a problematic and unproductive decision, not to mention one with suspiciously avaricious undertones.

The law, supposedly aimed at protecting and compensating citizens like Meg’s family, was swayed in this instance not to prosecute Parcol, which, as an organization with depleted coffers, had little to offer the CPS.

Could Privatizing Public Assets Lead to Greater Liability?

David Cameron’s recent plans to privatize roads could result in increased litigation for private companies if accidents arise from poor maintenance. At present this is under the remit of the Highways Agency, Transport for London (TfL) and similar public bodies.

Following the death of cyclist Deep Lee at a notoriously dangerous stretch of road in the capital, Detective Chief Inspector John Oldham, head of Scotland Yard’s Road Death Investigation Unit, said that although corporate manslaughter was one of a raft of offences that could be applied to the incident, the Act was  “badly drafted” and had “loopholes everywhere.” Transport consultants had advised that the area was extremely hazardous and had failed to design standards for safe cycling (it is due an upgrade in time for the Olympics).

The case presents another problem with accountability.

When asked about the design standards of the road, Mayor Boris Johnson stated that the structure had been implemented before the guidance was published. It is hard to see why the above cases would not be considered as valid grounds for corporate manslaughter charges and, unless I am mistaken, none qualify for exemption. The beacon of accountability is an ever-diminishing light. At time of writing, no charges have been brought in the case.

Corporate and Individual Accountability

Justice is a shaky entity in systems that favour Goliaths over Davids. Decentralized safety services are problematic in delivering such justice but it should not be that, due to devolution of responsibility, accountability can be swept under the carpet by smart talking corporate lawyers.

To encourage business owners to meet their health and safety and governance responsibilities robust deterrents need to be upheld and negligent companies held to task. There are, of course, arguments for culpability to lie with both the organization and the individual. Often it is the actions of a number of responsible individuals, from policy makers to policy undertakers that cause an incident, and apportioning blame can prove contentious. If an individual is ultimately held responsible they may not have the means to effectively repair the damage done.

Conversely, it is unacceptable for individuals to feel that they are not culpable for their own actions

Between 1992 to 2005 (prior to the Act) there were 34 prosecutions for work related corporate manslaughter in England and Wales but only six small organizations convicted. Clearly that system was not working.

What is important now is to ensure processes of the Corporate Manslaughter and Corporate Homicide Act are tight enough to tie loopholes in the system and not allow it to become the next on the list of laws that corporations laugh in the face of.