It has been just over 10 years since the Corporate Manslaughter and Corporate Homicide Act (CMCHA) 2007 came into force.
After being heralded as the new dawn for corporate accountability in health and safety management, has it really had the effect that everybody had hoped for? The act effectively broadened the scope of corporate liability by removing the requirement to prove an individual was acting as the directing mind of the company before it was even possible to convict that company.
Instead, the CMCHA requires a “substantial element” of the breach to be the way in which the company’s activities were managed or organised by senior management, and the breach must also be directly attributable to a senior management failure, rather than just one person’s failings. Since 2008, when the act came into force, there have been 26 successful convictions for corporate manslaughter.
While that amounts to fewer than three convictions a year on average, it breaks down to six convictions within the first six years and 20 convictions in the following four years. Therefore, the figures alone show an increasing momentum.
Undoubtedly, as the police and the Crown Prosecution Service (CPS) gain in confidence in dealing with health and safety matters and understand the issues more, this number will continue to increase. However, we are still seeing police forces attending fatality incidents and almost immediately handing the case over to the Health and Safety Executive (HSE) without any scrutiny, when in reality, those cases could well have been pursued as corporate manslaughter.
Proving the link
One of the reasons for the CMCHA being introduced was to make it easier to charge large corporate entities with manslaughter offences. However, as it stands, there has not perhaps been an appetite for prosecutors to charge larger organisations, which is evidenced by the smaller sizes of the companies that have been convicted to date.
This may be because it is more difficult to prove the direct link between a breach and the senior management failure in larger organisations, due to their complex hierarchies and the multi-layered management structures in place. Therefore, to some extent, the CMCHA hasn’t quite achieved one of its initial purposes.
Through their investigations, the police work to gather evidence to identify who the senior management are, what the breach is and how these two elements are linked, but in organisations where senior management are more removed from day-to-day conduct and decision-making, this proves more difficult. While there has previously been a lack of big corporate entities being charged with CMCHA, that isn’t to say that it won’t happen in the future.
There are several high-profile, ongoing corporate manslaughter investigations against large organisations, the outcomes of which will be significant in the event that the CPS decides to prosecute. In those cases where the CPS has declined to prosecute for corporate manslaughter, it is likely that another enforcement body will have pursued offences under health and safety legislation instead.
Although the perception is that health and safety offences are “lesser” offences than corporate manslaughter, following the introduction of the new sentencing guidelines for health and safety offences and corporate manslaughter in February 2016, there has been significantly increased fine levels in general health and safety cases since then, including approximately 50 companies being fined more than £1m. This has inevitably changed the health and safety landscape and has no doubt reinforced the importance of health and safety management to businesses.
When a company is involved in a criminal investigation into a fatality, the tone of the investigation - if the police stay involved - is very different to that of an investigation solely involving the HSE. The breadth and scale of a police investigation can feel much more intense than that of the HSE.
The police are used to dealing with multiple witnesses and larger investigations, and can often be more aggressive. There is inevitably more of a stigma attached to a police investigation as opposed to one carried out by another regulatory body such as the HSE or a local authority.
While the police have no powers of arrest for corporate manslaughter offences, that doesn’t stop their approach from often feeling more intimidating than that of the HSE. For example, the police are much more likely to come in and take evidence rather than request and wait for evidence to be provided to them, as the HSE would.
The whole impression that companies get from corporate manslaughter investigations is that they feel more “criminal”. It is safe to say that, in light of certain recent largescale incidents and the media reporting surrounding the subsequent investigations, the offence of corporate manslaughter is becoming more widely understood by the general public.
Media reporting and the public perception of a company undergoing an investigation for corporate manslaughter can have an adverse effect on a business and its ability to continue operating at a profit, which in turn has knock-on effects for employees, customers and wider industries. That is why it is crucial to monitor and manage media sources and to ensure that management of a company is supported throughout an investigation so that business can continue as usual.
While fines for corporate manslaughter were initially perceived to be quite high, many now appear to be small change for such a serious offence, particularly considering the fines that we have seen for general health and safety offences in the past two years following the introduction of the new sentencing guidelines for those offences.
It is anticipated that there will be a continued - and possibly increased - momentum of corporate manslaughter cases in the coming years, particularly in light of a number of large-scale incidents that we have seen in the UK, such as the Didcot power station collapse, the Bosley Mill explosion and the Grenfell Tower fire. However, industry and lawyers have been anticipating this increased momentum for many years, with the police and the CPS becoming more comfortable in understanding and prosecuting offences under the CMCHA, but it has not really materialised yet.
It may well be that public pressure to charge under the CMCHA for the huge disasters of recent years will sees changes arise. But in the meantime, with huge fines, based on company turnover, now being commonplace in HSE prosecutions, companies are still facing harsh penalties for health and safety breaches, wherever the prosecution comes from.
Hauliers typically have high turnover levels - when considering their turnover/profit margins - and therefore, the health and safety sentencing guidelines are enough of a cause for concern, without the added worry of a possible increased momentum for corporate manslaughter prosecutions.
By Vikki Woodfine
Vikki Woodfine is a partner, regulatory, compliance and investigations at DWF in Manchester. For more information call 0161 603 5060 or email Vikki.Woodfine@dwf.law.