The Corporate Manslaughter and Corporate Homicide Act 2007 – Thirteen years in the making but was it worth the wait?
| Author | James Gobert |
| Date | 01 May 2008 |
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00699.x |
| Published date | 01 May 2008 |
LEGISLATION AND REPORTS
The Corporate Manslaughter and Corporate Homicide
Act 2007 ^ Thirteen years in the making but was it worth
the wait?
James Gobert
n
Despite a gestation period extending over thirteen years, the Corporate Manslaughter and Cor-
porate HomicideAct 2007 is a disappointment. It is limited in its scope, restricted in its range of
potential defendants and regressiveto the extent that, like the discredited identi¢cation doctrine
before it, it allows its focusto be de£ected from systemic fault to individual fault.As a result the
Act maynot curb the type of short-sighted risk management decisions that can lead to the deaths
of innocent workers, consumers and membersof the public. Further, by requiring DPPconse nt
to prosecute, the Act threatens to entangle corporate manslaughter prosecutions in the political
process to an unacceptable degree. Despite these weaknesses, the symbolic signi¢cance of the
Corporate Manslaughterand Corporate Homicide Act 2007 mayultimately transcend its meth-
odological de¢ciencies.
INTRODUCTION
The genesis of the Corporate Manslaughter and Corporate Homicide Act 2007
can be traced to a 1994 consultation paper of the Law Commission which
reviewed the lawof involuntary manslaughter.
1
Included in the report was a sec-
tion which addressed the responsibility of corporations for causing deaths.
2
A
recommendation for an o¡ence of ‘corporate killing’
3
followed in 1996 after the
Commission had received and considered feedback from its earlier paper. The
baton then passed to the Home O⁄ce. In 2000 it brought forth a consultation
document
4
inviting comment on speci¢ed aspects of its version of a corporate
killing o¡ence, which was modeled on that of the Commission.
5
There then
ensued another consultation period in which over 150 responses were received. A
draft corporate manslaughter bi ll was ¢nally published i n 2005, followed by a bill
in 2006 which ultimately became the Corporate Manslaughter and Corporate
n
Professor of Law, University of Essex. I would like to express my appreciation to the anonymous
referees for their helpful comments.
1 Law Commiss ion, Consultation Paper No. 135, Criminal Law:Involuntary Manslaughter(1994 ).
2ibid, Pts.IV,V(G).
3 Law Commission Report No. 237, Legislating the Criminal Code: Involuntary Manslaughter (1996 ),
para.8.3.5. (hereinafter Law Comm. Rpt. No. 237)
4HomeO⁄ce,Reforming the Lawon InvoluntaryManslaughter:The Government’sProposals(2 000).
5 The primary modi¢cations proposed by the Home O⁄ce were to extend the o¡ence from cor-
porations to all ‘undertakings’ (any trade or business providing employment) and to indicate its
willingness to consider personal liability for directors who contributed or substantially contribu-
ted to their company’s o¡ence.
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71 (3) 413^ 463
Homicide Act 2007.
6
Despite the time available to study the proposed legislation
and the breadthof input along the way, the2007 Act is somewhat of a disappoint-
ment. It is limited in its vision and lacking in imagination. Further, it retains
many of the evidentiary problems associated with the ‘identi¢cation doctrine,’
fromwhich it had been the Commission’s aim to free the law.
7
One does not have to look far to ¢nd the Act’s most glaring de¢ciency. It is
revealed in its very title. Rather than tackling the generic problem of corporate
criminality, the Act is restricted to one statistically minor (in terms of its inci-
dence
8
although clearly not in terms of the seriousness of the harm caused)
dimension of a much more complex problem ^ injuries and deaths caused by an
organisation’s blatant disregard for the safety andwelfare of employees, consumers
and membersof the public.
9
The Act also is disappointingi n itsfailure to provide
for the criminal liability of directors, corporate executives and senior managers
who signi¢cantly contribute to their organisation’s o¡ence. To the contrary, these
and other individuals are given immunity from accessorial liability. With its
exclusive focus on organis ati onal liability, Parliament appears to have lost sight of
the fact that senior managers and directors are responsible for conceiving, formu-
lating, approving and implementing corporate policies, including those which
turn out to be criminogenic. Further, through its requirement that persons who
play a signi¢cant role in the formulation and/or implementation of organisation
policy be shown to have made a substantial contribution to the corporate o¡ence,
the Act threatens to perpetuate the same evidentiary stumbling blocks that fru-
strated prosecutions under the identi¢cation doctrine. Other provisions in the
Act that are also likely to compromise its e¡ectiveness include the need to show
a pre-existing‘duty’to the victim, which was not an element of the Commission’s
original recommendations orthe 2000 Home O⁄ce consultation document,and
the requirement of DPP consent to prosecute, which was speci¢cally rejected in
both Reports in respect of private prosecutions and which threatens to embroil
corporate manslaughter prosecutions in the political process. As a consequence,
it is debatable whether the 2007 Act will be any more e¡ective than was the iden-
ti¢cation doctrine in curbing the type of grossly ill-advised organisational risk-
taking that can lead to fatalities.
This article begins with an overviewof the key features of the Act. Inthe sec-
tions that follow the issues identi¢ed in the preceding paragraphwill be probed in
greater depth. In the conclusion I will suggest that the primary value of the Act
maylie not in its test of corporate liability but in thevery fact of its existence. The
Act’s symbolic value may ultimately transcend its methodological de¢ciencies.
What impact it will have in practice, however, can only be a matterof conjecture,
6 Hereinafter the CMCH Act.The o¡ence will be known as corporate homicide in Scotland, but
corporatemanslaughter elsewhere in the UK.
7 Law Comm.Rpt. No.237, para.8.1.
8 For 2006^07, there were 241 work-related deaths of employees, compared to 141,350 instances of
injuries. Health and Safety Commission, Health and Safety Statistics 2006/07, http://www.hse.
gov.uk/statistics/overall/hssh0607.pdf (last accessed 08/02/08).
9 See also C.Wells‘The CorporateManslaughter Proposals: Pragmatism,Paradox and Peninsularity’
[1996] Crim LR 545.
Corporate Manslaughterand Homicide Act 2007
414 r2008The Author. Journal Compilation r2008 The Modern Law ReviewLimited.
(2008) 71(3) 413^463
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