The corporate manslaughter and corporate homicide act 2007

Criminal Law Review

Volumn , Issue 8, 2008, Pages 589-611

  Ormerod, David ^a   Taylor, Richard ^b  

^a UNIVERSITY OF LONDON   (United Kingdom)

^b UNIVERSITY OF CENTRAL LANCASHIRE   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 49249137568     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (87)

1. On the Act see generally J. Horder, "The Criminal Liability of Organisations for Manslaughter and Other Serious Offences" in S. Hetherington (ed), Halsbury's Laws of England Centenary Essays (2007), p. 103;
2. R. Matthews, Blackstone's Guide to the Corporate Manslaughter and Corporate Homicide Act 2007 (2008); the Explanatory Notes are at http://wwvj.opsi.gov.uk/acts/acts2007/en/ukpgaen.20070019_en-1 [Accessed May 26, 2008]; Other useful documents are on the Home Office website.
3. See SI 2008/401 - the only parts not brought into force are s.2(1)(d) (duty owed to a person in custody, etc. to be a relevant duty of care) and s.10 (power to order conviction, etc. to be publicised). The latter is likely to be brought into force more quickly than the former which will be a matter of three years or more.
4. For an early call for legislation see C. Wells, "Cry in the Dark: Corporate Manslaughter and Cultural Meaning" in I. Loveland (ed.), Frontiers of Criminality (1995).
5. No.237 Legislating the Criminal Code: Involuntary Manslaughter (1996).
6. On which see H. Keating, "The Law Commission Report on Involuntary Manslaughter: (1) The Restoration of a Serious Crime" [1998] Crim. L.R. 535;
7. A. McColgan, "Heralding Corporate Liability" [1994] Crim. L.R. 547.
8. See also S. Field and N. Jorg, "Corporate Liability and Manslaughter: should we be going Dutch?" [1991] Crim. L.R. 156.
9. C. Wells, "The Corporate Manslaughter Proposals: Pragmatism, Paradox or Peninsularity" [1996] Crim. L.R. 545, 553.
10. Reforming the Law on Involuntary Manslaughter: The Government's Proposals (2000): http://www.homeoffice.gov.uk/documents/cons-2005-corporate- manslaughter/2000-cons-invol-manslaughter.pdf?view=Binary [Accessed May 26, 2008].
11. See J. Gobert, "Corporate Killing at Home and Abroad: Reflections on the Government Proposals" (2002) 118 L.Q.R. 72;
12. G.R. Sullivan, "Corporate Killing - Some Government Proposals" [2001] Crim. L.R. 31.
13. For a different proposal based on causing death in the course of a specified "scheduled" offence (such as one contrary to the Health and Safety at Work Act) see P.R. Glazebrook, "A Better Way of Convicting Businesses of Avoidable Deaths and Injuries" (2002) 61 C.L.J. 405.
14. Reforming the Law on Involuntary Manslaughter (2000), para.3.1.9.
15. House of Commons Home Affairs and Work and Pensions Select Committees, First Joint Report of Session 2005-06, Draft Corporate Manslaughter Bill. HC Paper No. 540 I-III (Session 2005/06).
16. Cm. 6755.
17. On this see the discussion by C. Wells, "Corporate Manslaughter: Why Does Reform Matter?" (2006) 122 South African Law Journal 646.
18. e.g. familial homicide in the Domestic Violence Crime and Victims Act 2004 s.5 and the new offences of causing death by various types of driving created in the Road Safety Act 2006.
19. No moves towards specific offences for corporate liability for non-fatal offences have been made in England.
20. See, e.g. Kite and OLL Ltd, Independent, December 9, 1994;
21. Jackson Transport (Ossett) Ltd, reported in Health and Safety at Work, November 1996, p.4;
22. Great Western Trains Co, unreported, June 30, 1999, CCC; Roy Bowles Transport Ltd, The Times, December 11, 1999.
23. As of May 12, 2008: http://www.corporateaccountability.org/ manslaughter/cases/ convictions.htm [Accessed May 26, 2008].
24. (1989) 88 Cr. App. R. 10.
25. [2000] Q.B. 796; considering Great Western Trains Co, unreported, June 30, 1999, CCC. It was also rejected in Scotland in Transco Plc v HM Advocate (No. 1) [2004] S.L.T. 41.
26. The court's conclusion that there can in general be no corporate liability in the absence of an identified human offender ignores the principle discussed above of corporate liability where a duty is specifically imposed on the corporation as a legal person: Birmingham & Gloucester Railway (1840) 3 Q.B. 223.
27. C. Wells, "The Law Commission report on involuntary manslaughter: the corporate manslaughter proposals: pragmatism, paradox and peninsularity" [1996] Crim. L.R. 545.
28. See also A. Simester & G.R. Sullivan, Criminal Law Theory and Doctrine, 1st edn (2000), pp.253-254.
29. Celia Wells in Corporations and Criminal Responsibility, 2nd edn (2001) recognised the point that, properly conceived, aggregation "straddles agency and holistic forms of liability . . . it is problematic if it is taken to mean that the fragmented knowledge of a number of individuals is fitted together to make one culpable whole. . . . Aggregation needs to be seen as a recognition that individuals within a company contribute to the whole machine; it is the whole which is judged not the parts . . . So the question would not be whether employee X's knowledge plus employee Y's knowledge added up to recklessness or whatever, but whether, given the information held amongst a number of 'responsible officers' it can be said that the corporation itself was reckless".
30. Because SI 2008/401 does not bring into force s.2(1)(d) dealing with custodial duties, it goes to the lengths of providing that the abolition of common law manslaughter for corporations "does not apply to an offence committed by the breach of any such duty as is referred to in s.2(1)(d)". This preservation seems likely to be of only theoretical import given the difficulties in bringing a prosecution for such an offence and given that most potential defendants would in any event have Crown immunity at common law.
31. See the debacle over the Sexual Offences Act 2003 and the remedy in s.55 of the Violent Crime Reduction Act 2006.
32. See on this F.B. Wright, "Criminal Liability of Directors and Senior Managers for Deaths at Work" [2007] Crim. L.R. 949.
33. The Home Office Consultation Paper in 2000 had suggested that there should be responsibility for corporate manslaughter placed on individual directors in appropriate cases but this attracted strong opposition.
34. First Joint Report of Session 2005-06, Draft Corporate Manslaughter Bill, para.313.
35. Wells, "The Law Commission report on involuntary manslaughter" [1996] Crim. L.R. 545, 549.
36. Wells, "Corporate Manslaughter: Why Does Reform Matter?" (2006) 122 South African Law Journal 646.
37. cf. the argument advanced by C. Wells, Corporations and Criminal Liability (2001), p. 120.
38. See JF Alford Transport Ltd [1997] 2 Cr. App. R. 326.
39. Defined in s.25 to mean "any statutory provision dealing with health and safety matters, including in particular provision contained in the Health and Safety at Work etc. Act 1974".
40. Presumably the Connelly principle (Connelly v DPP [1964] A.C. 1254) is displaced by the section?
41. See Wright, "Criminal Liability of Directors and Senior Managers for Deaths at Work" [2007] Crim. L.R. 949 on the use of s.37 of the Health and Safety at Work Act in this context.
42. Explanatory notes, para. 14.
43. s.1(5)(a) (corporate homicide in Scotland by virtue of s.1(5)(b)).
44. SI 2008/396 - to reflect changes in government departments such as from the Department of Constitutional Affairs to the Ministry of Justice.
45. By s.25, "partnership" means - (a) a partnership within the Partnership Act 1890, or (b) a limited partnership registered under the Limited Partnerships Act 1907, or a firm or entity of a similar character formed under the law of a country or territory outside the UK. Partnerships are to be treated as owing whatever duties of care they would owe if they were a body corporate (s. 14(2)). Limited liability partnerships under the 2000 Act are caught by the definition of corporation in any event.
46. By s.25, "trade union" has the meaning given by s.1 of the Trade Union and Labour Relations (Consolidation) Act 1992.
47. By s.25, "employers' association" has the meaning given by s.122 of the Trade Union and Labour Relations (Consolidation) Act 1992.
48. [2008] EWCA Crim 273.
49. Hansard, HL Vol.688, col.GC189 (January 15, 2007) (Lord Hunt).
50. See the Ministry of Justice Guidance on the Act (2007), p.11.
51. s.2(2) deals with deaths in custody and it is not anticipated that it will be brought into force for several years.
52. s.2(7) specifies, for the avoidance of doubt, that "the law of negligence" includes in relation to England and Wales, the Occupiers' Liability Act 1957, the Defective Premises Act 1972 and the Occupiers' Liability Act 1984.
53. It was regarded as unnecessary by the Home Affairs and Work and Pensions Committees, First Joint Report of Session 2005-06, Draft Corporate Manslaughter Bill, para. 105. See also Clarkson, "Corporate Manslaughter: Yet More Government Proposals" [2005] Crim. L.R. 677, 683.
54. See below.
55. s.2(7) further defines "construction or maintenance operations" to mean "operations of any of the following descriptions - (a) construction, installation, alteration, extension, improvement, repair, maintenance, decoration, cleaning, demolition or dismantling of - (i) any building or structure, (ii) anything else that forms, or is to form, part of the land, or (iii) any plant, vehicle or other thing; (b) operations that form an integral part of, or are preparatory to, or are for rendering complete, any operations within paragraph (a)".
56. Willoughby [2004] EWCA Crim 3365; [2005] 1 W.L.R. 1880.
57. Following the same approach taken to gross negligence manslaughter in Wacker [2002] EWCA Crim 1944; [2003] Q.B. 1207.
58. Hansard, HL Vol.688, col.GC187 (January 15, 2007).
59. See below.
60. The various categories are further defined in s.2(7). Section 23 provides a power to the Secretary of State to add to those categories listed in s.2(2), to whom a "relevant duty of care" is owed by reason of s.2(1)(d).
61. Under the new division of power, prisons come under the responsibility of the Ministry of Justice. The list of government departments as enacted in Sch.1 has already been amended.
62. Report stage, Hansard, Vol.689, col.519 (February 5, 2007).
63. Defined in s.8(5): '"health and safety guidance' means any code, guidance, manual or similar publication that is concerned with health and safety matters and is made or issued (under a statutory provision or otherwise) by an authority responsible for the enforcement of any health and safety legislation."
64. See further B. Fisse and J. Braithwaite, Corporations, Crime and Accountability (1993).
65. See the Australian Capital Territories Crimes (Industrial Manslaughter) Amendment Act 2003 s.51.
66. And of course no individual liability is possible under the Act.
67. See D. Ormerod, Smith and Hogan, Criminal Law, 12th edn (2008), Ch.4.
68. cf. Kennedy (No. 2) [2007] UKHL 38; [2007] 3 W.L.R. 612. This is by no means clear cut since the qualification in Latif [1996] 1 W.L.R. 104 may apply with the organisation and the employee regarded as acting in concert.
69. See Anns v Merton BC [1978] A.C. 728, HL.
70. [1995] 2 A.C. 633, HL.
71. [1995] 2 A.C. 633, 738.
72. [2001] 2 A.C. 619, HL.
73. [2001] 2 A.C. 619, 673-674. Cited by Horder, "The Criminal Liability of Organisations for Manslaughter" (2007) (see above fill).
74. Home Office, Summary of Responses to Corporate Manslaughter: The Government's Draft Bill for Reform (March 2005), para.9.
75. By s.12(1) "the 'armed forces' means any of the naval, military or air forces of the Crown raised under the law of the United Kingdom".
76. Will there be a problem in ECHR terms if the army cannot be prosecuted for killing? Arguably there will be no breach of Art.2 because an intentional killing will be prosecutable as murder on the part of the officer involved.
77. By s.12(2), a person who is a member of the armed forces is to be treated as employed by the Ministry of Defence.
78. By s.4(4), "the 'special forces' means those units of the armed forces the maintenance of whose capabilities is the responsibility of the Director of Special Forces or which are for the time being subject to the operational command of that Director".
79. "Any duty of care owed by the Ministry of Defence in respect of activities carried on by members of the special forces is not a 'relevant duty of care'" (s.4(3)).
80. s. 13 provides that police officers are to be treated as employees of the police force for which they work (and are therefore owed the employer's duty of care by the force). It also ensures that police forces are treated as occupiers of premises and that other conduct is attributable to them as if they were distinctly constituted bodies.
81. On the police killing of de Menezes at Stockwell tube station, mistakenly believing him to be a suicide bomber, see J. Rogers, "Stockwell Revisited" (2007) 157 N.L.J. 286
82. See Horder, "The Criminal Liability of Organisations for Manslaughter" (2007), pp.116-120.
83. Emergency circumstances includes circumstances that are believed to be emergency circumstances: s.6(8). This deals with the circumstances in which the response is to a hoax call.
84. Other organisations effecting sea rescue are also exempt.
85. There is a rather more specialised provision which applies to anyone who is under or assumes a rescue duty at sea: s.6(5). "Any duty of care owed in respect of the carrying out, or attempted carrying out, of a rescue operation at sea in emergency circumstances is not a 'relevant duty of care' unless it falls within section 2(1)(a) or (b)."
86. cf. Wright, "Criminal Liability of Directors and Senior Managers for Deaths at Work" [2007] Crim. L.R. 949 on the sentencing provisions and fines generally.
87. See The Merchant Shipping Act 1894, MV Herald of Free Enterprise Report of Court No 8074, para. 14.1. But will it apply, for example, to cases such as Piper Alpha where the public inquiry concluded that there were unsafe practices? See Cullen Report, The Public Inquiry into the Piper Alpha Disaster (1990), para. 11.4.