Corporate Manslaughter and Corporate Homicide Act 2007

The Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) was a direct response to the flaws of the previous common law; particularly those of the abortive identification doctrine.  However, the CMCHA   has also been met by a distinct lack of enthusiasm.  The Act has been subject to criticism due to its restrictive range of potential defendants and its adoption of the conventional standard of causation taken by the criminal courts.  Commentators have perceived this to be wholly detrimental to the aims and scope of the CHCHA.  These issues will be further discussed.  The adoption of the principle of aggregation has seen the Act become a more reflective representation of the rules of attribution and what constitutes a corporation.  However, due to lack of clarification within the Act, it is unclear how far aggregation will extend.  A restrictive interpretation will ultimately reiterate that the Act is limited in its scope and will provide extra security for the larger corporation.  Whilst the principles set forth have been regarded as a ‘vast improvement', the CMCHA   continues to place substantial emphasis on individual liability rather than on systematic fault.  Such misplaced focus further accentuates that the Act remains to be a mere extension of the ‘discredited identification doctrine' and thus fails to encapsulate the true essence of corporate accountability.  Rather than reiterating the justifications for corporate liability it is a makeshift response to growing public and political pressure. 

History: Corporate Manslaughter under Common-Law

It had been accepted that a persona ficta (e.g. a company) could not be guilty of manslaughter as the definition of homicide was "the killing of one human being by another human being."  Turner J, in his concluding remarks on corporate liability in P&O European Ferries Ltd. rejected this position, affirming that a company can be convicted for manslaughter:

‘...a person who is the embodiment of a corporation and acting for the purposes of the corporation is doing the act or omission which caused the death, the corporation may also be found guilty for manslaughter.'

This sent a clear and unequivocal message: corporate immunity had no place in the legal community and companies could be held liable for crimes intended to address individual liability.  Turner J's conclusions also explicated the pre-requisites to a corporate manslaughter conviction:

(1) an individual, through his acts or omissions, must have caused death and

(2) that individual could be identified as the embodiment of the corporation itself. 

This is commonly recognised as the identification doctrine (ID). However, the ID has been perceived as an ineffective legal theory which has arguably failed to encapsulate the ‘complexity of the modern company.' Whilst the theory behind corporate manslaughter and corporate liability was conclusive, the unyielding ID emphasised that from a practical view point it was still virtually impossible to "pierce the corporate veil." Legislation was needed to redress the imbalance that existed between the theoretical side of corporate liability and the inability to transfer this onto the practical stage. This reiterated that a more efficient method of ensuring convictions would (1) justify corporate liability and (2) ensure on a practical level corporations could be equally as liable as individuals.

Nevertheless, the identification doctrine had been affirmed in the two leading authorities on common law corporate manslaughter: P&O European Ferries (Dover) Ltd and the Attorney-General's Reference (No. 2 of 1999). The ID resolved the debate of whether the actus reus and, more importantly, the mens rea of an offence could be affixed to a persona ficta. This can be understood through the ‘rules of attribution'. Pinto and Evans emphasise, ‘[s]ince a company has no intrinsic capacity to act, there must be rules according to which acts by human agents can be attributed to, or count as the acts of, the corporation.' This stressed the growing scope for corporate liability. Lord Hoffman added to this in Meridian Global Funds Management Asia Ltd v Securities Commission, admitting that knowledge and other mens rea could equally be attributed to a corporation. This was affirmed in P& O Ferries: ‘I am...of the opinion that on the appropriate facts the mens rea required for manslaughter can be established against a corporation.'  In this case, the standard used for manslaughter was recklessness as defined in the cases of R v Caldwell and R v Lawrence.  The issue of mens rea was also dealt with in the Attorney General's Reference. The standard for manslaughter used was manslaughter by gross negligence defined in R v Adomako. The Attorney-General posed the question [to the Court of Appeal]: ‘[c]an a defendant be properly convicted of manslaughter by gross negligence in the absence of evidence as to the state of mind?' The court answered (per Rose LJ) "yes". The focus of manslaughter by gross negligence was not on the state of mind or the intentions of the defendant, but ‘whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him...was such that it should be judged criminally liable.'  Pinto and Evans thus emphasise that whilst state of mind is not a pre-requisite to a conviction of manslaughter by gross negligence, it ‘may be relevant when assessing whether negligence was gross and therefore criminal.'

Another subject of debate [in relation to the ID] had been, who can be identified as the embodiment of a corporation? Both Tesco Supermarkets Ltd v Nattrass and Meridian dealt with this issue, where it was held that the ‘directing mind and will' of the company would constitute the embodiment of a corporation. In the context of the corporate manslaughter, it can be concluded that, ‘a corporation can be liable...only if a senior manager of the company, and probably a director, was individually liable.' It may be noted, however, that Meridian developed a broader interpretation of the phrase, and would largely depend on the facts of the case.  In the Attorney-General's Reference, the prosecution's argument that Great Western Trains should be convicted of corporate manslaughter because ‘the company's management policies had resulted in the failure to have a proper warning system which directly led to the crash', failed on the grounds that it was inconsistent with the ID. Rose LJ stated:  "unless an identified individual's conduct... can be attributed to the company the company is not, in the present state of common law, liable for manslaughter." The focus on individual criminality may be seen to represent one of the major deficiencies of the previous common law; allowing its ‘focus to be deflected from systematic fault to individual fault.'  It can be viewed that the ID undermined its aim of imposing and justifying corporate liability by allowing individual criminality to be the root of ensuring convictions.   

Evans and Pinto emphasise that ‘serious fault on the part of the corporation is by no means the same as sufficient fault on the part of a person who could be identified with it, and which would fix a corporation with criminal responsibility.' This explicates that whilst serious fault on the part of corporation may be found; proving that this fault can appropriately be identified with the corporation is where the evidential obstacle lies. This is best illustrated in P & O Ferries.  In his report Sheen J explicitly states: ‘[from] top to bottom the corporate was infected with the disease of sloppiness.' However, the main parties at fault (i.e. the assistant bosun, the Chief Officer and the Master) were deemed to be of ‘low rank' within the hierarchy of the company and thus a conviction could not be attained as the neither the mens rea nor the actus reus of manslaughter could be successfully linked to the ‘directing mind' of P&O Ferries

The few corporate manslaughter convictions have been concrete proof of the shortcomings of the ID. The only successful convictions of corporate manslaughter had been with small companies (e.g. Kite & OLL Ltd).  With small corporations it is easier to fix criminality onto the company as the ‘directing mind' will often, if not always, be heavily involved with the day-to-day running of the company.  However, with large corporations ‘ likely to be highly devolved; proving sufficiently proximate fault on the part of the director, so as to be identified with the corporation, will normally be impossible.' Evans and Pinto argue: ‘what is the point in prosecuting not only the individual at fault but also the corporation he alone runs?'  Gobert enhances this argument through his commentary on the ID in Tesco v Nattrass: ‘One of the prime ironies of Nattrass is that it propounds a theory of corporate liability which works best in cases where it is least needed and works least in cases where it is needed most.'  The ID represented a distinct misunderstanding of the highly complex chain-of-command in the modern corporation; rather than achieving corporate accountability the ID reiterated the existence of the corporate veil which directors would be more than happy to hide behind. 

P&O Ferries also addressed the principle of aggregation. The genealogy of the aggregation doctrine can be traced to American roots (e.g. United States v Bank of New England).  The principle provides that rather than assessing the failures of individual parties, it would ‘seem more appropriate to add them together in order to capture the true extent of the company's fault.'   In P&O Ferries, Bingham LJ rejected aggregation: "[a] case against a personal defendant cannot be fortified by evidence against another defendant."  Evans and Pinto disagree with this stance; ‘this rejection has the effect of severely restricting the scope of corporate criminal liability.'  They support their argument on the grounds that the doctrine of aggregation is not inconsistent with the principle of the ‘directing mind' in Tesco Supermarkets v Nattrass.  ‘If there is no difficulty with the idea that the mind of a legal person comprising the several members of the board, why shouldn't criminal liability also reflect the fault of the whole of the directing mind?' Gobert takes a similar stance, questioning Bingham LJ's concluding comments on aggregation: ‘his conclusion that ‘a case against a corporation can only be made by evidence properly addressed to showing guilt on the part of the corporation' does not follow. [...] The purpose of the prosecution of a company is not to blame any particular individual... [t]he responsibility sought to be affixed is not individual but collective.' This serves as further evidence that the common law approach to corporate liability was inconsistent with its aims.  Rather than emphasising the importance of corporate accountability, fault has been shifted from the corporation to the individual and thus failed in justifying corporate liability and failed to emphasise that it was the acts of corporate bodies that were being scrutinised, not those of the individual.

Both the Government and the Law Commission recognised that ‘a corporation's liability for manslaughter was...solely based upon the principle of identification' and would consequently ‘impose unacceptable limitations on the scope of corporate liability for involuntary homicide.' The inability to produce an effective response to corporate manslaughter and corporate liability at common law thus gave rise to the creation of the Corporate Manslaughter and Corporate Homicide Act 2007.

The Corporate Manslaughter and Corporate Homicide Act 2007

S.20 of the CMCHA   established that the old common law would be dispensed of in place of the new corporate killing offence, set out in s.1.  Gobert argues that the CMCHA   is (1) limited in its scope; (2) restricted in its range of potential defendants; and (3) continues to allow its focus to be deflected from systematic fault to individual fault. The key constituents of the new offence include: ‘qualifying organisation', ‘causation' and ‘senior management.' These are the elements that have been subject to the greatest degree of scrutiny and in assessing the efficacy of the CMCHA it will be important to address these issues and see whether they tackled the issues as mentioned afore.

S.1(2) sets out which organisations may fall within the ambit of the Act. Gobert argues that whilst the common law was very limited in its range of potential defendants, the CMCHA  could now be construed as being too broad.  One of the main aims of the corporate manslaughter offence was to penalise companies who allowed their ‘pursuit of profit to blind them to concerns of safety.'  The extension of the offence to apply to governmental organisations such as the police or the department of health may thus be seen to be inconsistent with its aims.  Hospitals or the police are not regarded as profit-driven enterprises; to the contrary they are widely recognised as organisations providing services to better the well being of Her Majesty's subjects.  Consequently, it seems impossible not to ask the question: does the exhaustive list of potential defendants emphasise that the Act loses sight of its primary aims?  However, the recent investigation of Stafford Hospital whose ‘"appalling" emergency care resulted in patients dying needlessly' stresses that Gobert's argument is rather generalised and superficial.  Shadow Health Secretary Andrew Langley stated: "It is unacceptable that the pursuit of targets- not the safety of patients- was repeatedly prioritised."  From this view point, it is difficult to justify that such organisations should be excluded from liability.  The Stafford Hospital investigation obviates that whilst public-serving institutions may not be profit-driven, they do have other incentives on their agenda which have greater priority than safety regulations; clearly these organisations should fall under the same degree of scrutiny as the corporations which put profit above safety. 

The requirement of ‘causation', provided in s.1(a), dictates that the prosecution must prove that the management failure was the ‘cause' of the victim's death. The interpretation of this has been that the management failure need not have been the only cause providing it was a cause.  Causation has been subject to criticism as it has been recognised as largely different to the recommendations of the Law Commission Report 237. The Law Commission recommended an express provision that the management failure need only be a cause of death and not the immediate cause of death. The question here is; can the two concepts be distinguished?  A fair answer will have to consider that this really is a matter of interpretation.  The Government saw the inclusion of such a provision unnecessary following the clarification on the law of causation provided by the House of Lords in Environment Agency v Empress Cars (Artillery) Ltd.  However, Gobert seems to adopt a more restrictive interpretation of s.1(a).  He emphasises that the new CMCHA  fails to take into account recent developments in the law of causation (i.e. in R v Kennedy (No.2)) where ‘free and voluntary acts of informed adults will ordinarily break the chain of causation.' The adoption of the conventional standard of causation in criminal law will ultimately raise the threshold of guilt and securing convictions will become a more arduous task. Consequently, it stresses that the Act has the impact of restricting the scope of corporate liability. Gobert thus emphasises that if the CMCHA  is to have any ‘bite', it must adopt the Law Commission's rather more expansive stance on causation. 

Interestingly, the requirement of causation seems to conflict with s.18; this provides that under the corporate killing offence an individual cannot be found guilty as an accessory to the offence. The Government's rationale for this was that it was trying to reiterate the notion of corporate liability as opposed to individual liability.  However, Gobert argues that if a senior manager's acts or omissions constituted a ‘substantial element' in the gross breach of the relevant duty of care it would ‘seem hard to argue that these managers were not accessories to that offence.'  The very existence of a contradiction within the CMCHA  undermines its force.  Further, the inclusion of s.18 emphasises a clear misunderstanding of the purpose of s.1, i.e. scrutinising and punishing the failures of the senior management of corporations, which will undoubtedly include individual acts and omissions.  S.18 has had the effect of producing loopholes within the legislation which culpable corporate executives and senior directors will be more than happy to use and exploit and can thus be seen to limit the scope of the 2007 Act.  

The concept of ‘senior management' (s.1(3)) has received the most attention and criticism as it is here that the Act attempts to emphasise its focus on corporate liability rather than on the liability of the individual. Pinto poignantly asks the question: ‘Does the need to prove that "senior management failure" was "a substantial element in the breach" reproduce the same old problems by focusing on individuals at a particular level as opposed to systematic fault?'  The Government disagrees with this assumption; the new offence was targeted at failings in strategic management of an organisation as a collective entity.  Notably the new offence permits the principle of aggregation. This may be seen by the ‘reference to ‘senior management' in s.1(3) and the linkage in s.1(4) of senior management to persons who play significant roles in the making or carrying out of corporate decisions'.  Gobert emphasises that ‘the category of senior management is doubtless a more encompassing and realistic than the identification doctrine's restriction to persons who comprise the ‘directing mind and will' of a company.' The adoption of a more holistic theory of attribution (i.e. the focus on collective responsibility) would thus emphasise that the aim of targeting collective responsibility has been achieved and the flaws of the ID have been appropriately rectified. This would even go as far as reiterating the justifications for corporate liability and that a company can be equally as liable as an individual.  However, it is still unclear as to how far aggregation will extend in the Act and whether the wrongful acts or omissions of individual employees can be added to the wrongful acts of the senior management. This will depend on whether the courts decide to adopt a more imaginative interpretation of aggregation within the 2007 Act. A restrictive interpretation will ultimately fail to capture the true extent of corporate fault as culpability would purely be limited to that of the senior management, rather than accepting that fault can occur in each tier of the corporate hierarchy.  Evans and Pinto emphasise that this would favour the larger corporation with ‘highly devolved day-to-day operations.'  A restrictive interpretation of the senior management test could also encourage corporations to delegate health and safety regulations to junior managers so as to protect themselves from criminal liability. In reference to the original quote of this text, it can be emphasised that the CMCHA does not guarantee that ‘all violators behave well'; to the contrary, it inadvertently encourages corporations to seek refuge in its lack of clarification.

Also, the CMCHA still continues to place much emphasis on the culpability of the individual.  Under the identification doctrine the main issue involved was which individuals could be recognised to represent the ‘directing mind and will' of a corporation.  The CMCHA induces a similar question: ‘which individuals play a ‘significant role' in the making and carrying out of organisational policy?' Further, Gobert highlights that the wording of the CMCHA may produce new questions: ‘how much of a role must an individual play in the decision-making or managing before the role can be deemed ‘significant'?; with how large a part of an organisation's activities must an individual be involved to satisfy the Act's requirement that the individual be involved in a ‘substantial part' of the activities in question?'  The existence of individual liability is incontrovertible; such focus on individual participation and individual liability, whether intended or not, can be seen to undermine the true essence of the 2007 Act; i.e. the focus on corporate culpability and liability. Whilst the 2007 Act has doubtlessly broadened the sphere of corporate liability, it is undeniable that the Act has still maintained many of the perennial conundrums of the identification doctrine.

The Best Route to Corporate Accountability?

The evident shortcomings of the CMCHA  have consequently developed a series of questions, particularly: do the criminal courts offer the best solution?; would it be better to pursue the individual rather than the corporation?

Clarkson is of the opinion that criminal sanctions do offer the best solutions due to its ‘symbolic and message sending role.' He emphasises that ‘[t]he massive publicity surrounding the conviction of a company for manslaughter in Kite and Others and the failure of the prosecution in the P&O case is testament to the power and dramatic weight of a criminal conviction as compared with civil liability.' The CMCHA's sentencing procedures are reflective of this. This can be seen by the court's power to issue a "publicity order" (s.10); this would naturally serve as a deterrent for fear of the corporation being identified as a criminal organisation. Further, the penalty of an unlimited fine (s.1(5)) has been recognised as more in line with the American Courts' use of punitive damages which may be seen to punish a firm due to criminal action.

However, the most worrying issue of sentencing within the Act is that it does not permit prison sentences.  It must be emphasised at this point that individuals may still receive prison sentences for the individual offence (i.e. manslaughter by gross negligence). However, this highlights individual criminality and not corporate criminality. This may stand as concrete proof that whilst corporate liability is a lot more far-reaching since the CMCHA, the notion that corporations can be liable for crimes intended to address individual liability has been seriously misjudged. Would it be more effective to punish the culpable individuals as opposed to a corporation? Arguably the pursuance of individuals would be an easier process as identifying culpable individual parties would be more straight-forward and would thus ensure a higher ratio of convictions. Also, individual liability would remove the arduous task of trying to find tenuous links between the far-removed senior management and the acts and omissions of employees.  But does easier mean better? The focus on individual liability may notably fail to take into account that a company's poor decision making process was evidently a substantial cause of death.  It would also fail to encapsulate the concept of corporate criminality and reiterate that the battle to impose and justify corporate accountability is lost.


Is the CMCHA a disappointment?  The success of the Act was ultimately hinged upon the efficacy of the notion ‘senior management.' The evident adoption of the principle of aggregation has undeniably gone a long way in addressing the issue of corporate liability and even strengthening the justifications for it. However, for the present, aggregation seems to be severely handicapped by the lack of certainty and clarification within the Act and it remains to be seen how imaginatively the courts will construe the senior management test in conjunction with aggregation. Ultimately, a restrictive interpretation may highlight the lacuna that exists between senior management and the lower tiers of the corporate structure and become a defence measure which will strengthen the existence of the corporate veil. The legislation also fails to dispense of its preoccupation with individual liability. Such focus on individual liability has been testament to the fact that the perpetuating problems of the identification doctrine still exist and emphasises that the Government has thus failed to (1) redress the previous common law approach, (2) emphasise that corporations can be equally as liable as the individual; and (3) provide a more effective method of convictions. Whilst the legislation is undoubtedly still in its early stages of interpretation, it remains to be seen whether it will be the route to corporate accountability. Thus far, legal scholars and critics alike have been highly sceptical of this.  It is believed that it will solely be a piece of legislation of symbolic importance; thus re-emphasising that corporations are still the ‘untouchables' of the legal society and the attempt to regulate corporate action through the criminal courts may not be solution which has, for so long, been anticipated.          

By Joshua Goulding

Born in Nassau, Bahamas, 12th October 1985.  He was primarily educated at St. Columba's College in Hertfordshire before studying Spanish and Portuguese at the University of Leeds.  He has just finished his Graduate Diploma in Law at BPP, Waterloo. He is currently seeking a training contract and is hoping to qualify as a commercial solicitor.

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