Identity charade

When the Corporate Manslaughter Act 2007 came into force in 2008, it was met with much fanfare. The then justice minister, Maria Eagle, described it as 'a ground-breaking piece of legislation', going on to say: 'This is about ensuring justice for victims of corporate failures. For too long it has been virtually impossible to prosecute large companies for management failures leading to deaths.'

There was much commentary on the Act in both legal and mainstream press at the time. Lawyers and health and safety consultants toured the country terrifying boardrooms with dark tales of crippling fines and publicity orders that would destroy company reputations. More than one website dedicated to the Act was set up in anticipation of the consultancy work that would arise as companies tried to put their houses in order to avoid prosecution for corporate manslaughter.

It was received wisdom (although received from where no one can recall) that prosecutions under the Act would be a regular if not frequent occurrence. Estimates of the number of cases that would be prosecuted ranged from between two and ten cases per year. So, as we approach the third anniversary of the Act coming into force, should we be surprised to discover that not one conviction has been obtained, and that only a single case has been charged?

Catalyst for change

In some ways the extensive coverage of the Act's arrival and the high expectations that greeted it were inevitable given its long and difficult journey to the statute book, and the notable failures to prosecute companies and organisations for manslaughter following fatal accidents. These failures, which initially were the catalyst for change, have continued through the years it has taken for the Act to pass, ensuring continued momentum.

The process started in earnest in 1996 with the Law Commission's report, Legislating the Criminal Code: Involuntary Manslaughter, which included proposals for a new offence of corporate killing. In making these proposals the report cited examples of major disasters where there had been a failure to achieve corporate accountability for manslaughter despite serious criticisms being made of the organisations.

These included Herald of Free Enterprise (1987), the King's Cross Fire (1987), Piper Alpha (1988), and the Clapham rail disaster (1988), which between them killed 420 people. In particular, it was the failure of the attempt to prosecute P&O in relation to the Herald of Free Enterprise disaster that highlighted the need for a change.

The Law Commission report led to a consultation paper in 2000, Reforming the Law on Involuntary Manslaughter: the Government's Proposals. This was published between the Ladbroke Grove rail disaster in 1999 in which 31 people were killed and the Hatfield rail disaster in 2000 in which four people were killed.

A draft corporate manslaughter bill was published in March 2005. In July 2005, in the Hatfield trial, all defendants, including Network Rail and Balfour Beatty, were acquitted of manslaughter, shortly after which the CPS announced that there would be no prosecutions for manslaughter arising out of Ladbroke Grove (although substantial fines for health and safety breaches were imposed on the various companies involved in these two disasters). The bill was amended numerous times before the Act was finally passed in July 2007.

During this period there were a small number of successful prosecutions for corporate manslaughter, most notably the 1994 conviction of OLL Ltd following the Lyme Bay Canoe tragedy in 1993, in which four school children drowned. There was also a conviction of a company in 1996, Jackson Transport (Ossett) Ltd, following the death of an employee. However, these were both small companies where personal and corporate responsibility were virtually indistinguishable.

Who's who?

The hurdle at which several previous attempts at prosecution for corporate manslaughter had failed was the 'identification' principle. Under this principle, before a company could be convicted of manslaughter, a 'directing mind' of the organisation '“ a senior individual who could be said to embody the company in his actions and decisions '“ also had to be guilty of the offence. The larger and more complex the organisation, the harder it was to clear this hurdle.

Crudely summarised, the Act creates an offence in the following circumstances: the way in which an organisation's activities are managed or organised by its senior management must be a substantial element in causing death and amount to a gross breach of a duty of care owed by the organisation to the deceased.

Senior management are defined as persons who play a significant role in making decisions about or managing whole or substantial part of activity of organisation. A breach is 'gross' if it falls far below what can reasonably be expected of the organisation in the circumstances.

Since April 2008, Health and Safety Executive (HSE) figures show there have been 321 deaths arising from fatal accidents at work. During the same period a further 819 members of the public have been killed in industry-related accidents. A review of the HSE's register of convictions reveals that there have been convictions for health and safety offences following 11 fatal accidents which occurred after the Act came into force, most of which are convictions of companies.

It is not known whether there was any consideration of a prosecution for corporate manslaughter in any of these cases and the summaries do not provide sufficient detail to speculate how such prosecutions might have fared. It is, however, right to say that none were cases involving more than one fatality or particularly aggravating circumstances.

One company has been charged with corporate manslaughter since the Act came into force. This is the case against Cotswold Geotechnical Holdings Ltd following the death of one of its employees who was killed when a pit in which he was taking soil samples collapsed. The decision to charge the company was made in April 2009.

The company was also charged under Health and Safety at Work Act 1974 (HSWA), and a director, Peter Eaton, was charged with gross negligence manslaughter and an offence under HSWA. The case has yet to come to trial. Recently the prosecution of the director was stayed because of his ill health. The trial of the company is due to take place in early 2010.

This case is similar to the successful prosecutions before the Act. Little if anything is likely to be learned from the case about the operation of the Act. The virtual indivisibility of the company and its senior management means that even without the Act the 'identification principle' would have been satisfied. Nor, probably, can much be learned about the CPS' approach to these cases since the most likely reason for prosecuting this case as corporate manslaughter is its very simplicity. Certainly there was nothing in the CPS press release announcing the charge to suggest that there was anything in the circumstances of the case that particularly warranted a prosecution for corporate manslaughter.

Case closed

Is the lack of cases since the Act came into force significant and is it indicative of what to expect? The process that follows a serious accident is invariably a lengthy one. By comparison with the 12 fatal accidents since April 2008 that have so far resulted in prosecution by HSE for health and safety breaches, within a similar period before that date there were about 150 fatal accidents that have been prosecuted. The decision whether and on what basis to prosecute is generally only reached after a number of years. Insufficient time has therefore passed to give any meaningful assessment yet based on the current cases that have reached the courts.

The CPS' special crime division advise in relation to possible cases of corporate manslaughter against companies. They have confirmed that while Cotswold Geotechnical remains the only case in which they have given positive advice for a prosecution under the Act, they are regularly consulted by police forces carrying out investigations where the offence is being considered. They confirmed that there was a period of almost a year following the Act coming into force during which there was little activity followed by a steady increase, with police forces now identifying more appropriate cases on which to seek advice. Nonetheless they consider that charges under the Act will remain a relative rarity.

There seems little evidence of any particular appetite to prosecute more cases and there remains a distinct lack of the type of machinery that one might think would be necessary to make a success of such cases. Police investigation of alleged manslaughter (both individual and corporate) arising out of workplace accidents is generally conducted by local CID. There is no national police organisation tasked with this type of investigation. This seems problematic given the great contrast between this and other types of crime they investigate.

Most solicitors working in this area find that the officers investigating have little if any experience of such cases. Moreover, they generally prioritise other casework over these cases (which contributes to the lamentable delays that occur) and often are explicit in their view that this is not 'real crime'. Only a small number of fatal accidents result in prosecutions of individuals for manslaughter.

Against this background it is hard to envisage many fatal accidents that will excite police to consider the offence of corporate manslaughter with the additional complications this presents. Unless there is some change in this thinking it is likely that only those cases attracting national attention (and therefore closer scrutiny of the investigation process) will be considered for the offence.

On top of this, investigating and prosecuting corporate manslaughter raises unique issues that need careful consideration early in the investigation stage. If the company is the target then careful consideration needs to be given to the handling of those who in normal circumstances would be suspects.

To demonstrate that the way in which an organisation's activities are managed or organised by its senior management is a substantial element in causing the death, senior managers may need to be approached as witnesses. Consideration may even need to be given to offering immunity in exchange for cooperation.

There is no evidence to suggest that there has been any joined-up thinking by the police or the CPS about the way of approaching such cases. Indeed, no thought appears to have been given to the way in which potentially suitable cases can be identified. For example, the Work Related Deaths Protocol, a document intended to manage the relationship between different investigators in the event of a work-related death, has not been updated since 2003. One might think that the Act warranted a rethink of that protocol.

It is undoubtedly too soon to make an assessment but on current evidence there is little reason to think that there will be many prosecutions for corporate manslaughter in the future. Moreover, when a major fatal disaster does occur (as regrettably it undoubtedly will at some point) resulting in a public demand that corporate liability for manslaughter be pursued, it remains to be seen how well the police and CPS will cope.