Criminal Liability for Deaths in Prison Custody: The Corporate Manslaughter and Corporate Homicide Act 2007

Published date01 September 2016
DOIhttp://doi.org/10.1111/hojo.12171
Date01 September 2016
The Howard Journal Vol55 No 3. September 2016 DOI: 10.1111/hojo.12171
ISSN 2059-1098, pp. 295–311
Criminal Liability for Deaths in
Prison Custody: The Corporate
Manslaughter and Corporate
Homicide Act 2007
DAVID M. DOYLE and SUZANNE SCOTT
David M. Doyle is Lecturer in Law, and Suzanne Scott is PhD candidate,
Maynooth University, Republic of Ireland
Abstract: This article explores a provision of the Corporate Manslaughter and Corporate
Homicide Act 2007, which has been neglected by criminologists and legal scholars – the
application of the legislation to deaths in custody. The article argues that proving the
liability of a prison based on the definition of ‘senior management’ in the Act may reflect
the problems associated with establishing the guilt of corporate bodies under the common
law identification principle and that the ‘senior management’ test may nullify the intent
of Section 2(1)(d) and undermine the capacity of the Crown Prosecution Service (CPS)
to convict a prison for an avoidable death in custody.
Keywords: corporate manslaughter; custodial deaths; senior management test;
corporate liability; identification doctrine; HM Prison Service; public body
accountability; gross negligence; prison management structures; duty owed to
prisoners
This article will examine the potential liability of HM Prison Service as an
organisational body in light of the Corporate Manslaughter and Corporate
Homicide Act 2007 (CMCHA 2007) and investigate whether the account-
ability of the prison service with regard to custodial deaths is extended
significantly by Section 2(1)(d) of the statute (Griffin and Moran 2010,
pp.358–81). This aspect of the Act was, unsurprisingly, very controversial
at the time, given that there were no less than 1,548 prison suicides in
the 29 years preceding it (Horder 2012, p.135; Ministry of Justice 2015).
The article will argue that the Act’s ‘senior management’ test may reflect
the problems associated with establishing the guilt of corporate bodies un-
der the common law identification principle and subsequently undermine
the capacity of the Crown Prosecution Service (CPS) to convict a prison for
an avoidable death in custody.
295
C
2016 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol55 No 3. September 2016
ISSN 2059-1098, pp. 295–311
Legislative Background
David Miers and Alan Page observed, in 1982, that a great deal of the
legislation initiated by government has been ‘moulded by the unceasing
efforts of interest groups who seek to imbue formal legislative initiatives
with their own interests and ideas’ (Miers and Page 1982, p.56). The Cor-
porate Manslaughter and Corporate Homicide Act of 2007 provides an
interesting example of this type of law reform. While concentration on the
role of these interest groups alone would, in view of the control which gov-
ernment exercises over access to the legislative process and the preparation
of legislation, offer a highly misleading depiction of the legislative process,
the influence of cause-centred groups and individuals in the formulation
of the 2007 Act cannot be disregarded. The legal reform for which pub-
lic interest groups, non-governmental organisations (NGOs), and victims’
groups began to agitate in the late 1980s, was provoked by a series of
‘accidents’ associated with corporate activity the Clapham Rail disaster,
the King’s Cross fire, the Piper Alpha oil rig explosion, and most promi-
nently in 1987, the capsize of the Herald of Free Enterprise ferry to name a
few disasters which involved considerable loss of life. The governmen-
tal response to each of these tragedies was the establishment of public or
legislatively mandated inquiries; however, it soon became apparent that
these transportation disasters were not simply the responsibility of a few
individuals. Indeed, such inquiries have tended to emphasise the systemic
failures in management and accountability, not to mention negligence (or
worse), that contributed to these disasters and the consequent loss of life.
Concentration on the overt findings of such inquiries in isolation, how-
ever,is potentially misleading. An e xamination of the rationale underlying
the inception of the aforementioned inquiries also discloses a negative side
to their establishment. Indeed, there is a temptation to remark of inquiries
that they are ‘established by government to examine any question for which
it cannot find or does not want to find, an immediate solution’ (Miers and
Page 1982, p.68, italics in original). This procrastination or symbolic aspect
cannot be ignored with respect to corporate manslaughter legislation in the
UK, particularly when the failings in the law were so evident to see (Almond
2013, p.25). None of the companies responsible for the above-mentioned
disasters were successfully prosecuted for gross negligence manslaughter
and in each of these cases, what proved insurmountable was the common
law ‘identification’ doctrine (Matthews 2008, p.9). A company could only
be found liable for manslaughter by gross negligence if the fault element
of the offence was possessed by someone, such as a director or chief execu-
tive, who could be identified as the directing mind and will of the company
itself (Horder 2012, p.124). However, the ‘identification’ doctrine was so
restrictive in practice, that there were very few prosecutions and only a
limited number of small companies were convicted for gross negligence
manslaughter (Ashworth and Horder 2013, pp.153–4).
Yet legislation (even belatedly) stems from ‘reactions’ (Miers and Page
1982, p.60). These reactions, whether of political parties, ministers, gov-
ernment departments or individual members of parliament, are directly
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2016 The Howard League and John Wiley & Sons Ltd

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