Search

BLOG

Do The Police Have The Skills To Investigate Corporate Manslaughter?

Blog image

In July 2017, the Corporate Manslaughter and Corporate Homicide Act 2007 (the Act) turned ten years old.  A month before, one of the worst fires in British history consumed the Grenfell Tower block, claiming the lives of an estimated 80 people.

The police have recently announced that it believes there are "reasonable grounds".” to suspect that Royal Borough of Kensington and Chelsea and the Kensington and Chelsea Tenant Management Organisation may have committed corporate manslaughter.

Since the Act came into force, there have only been 25 successful convictions of corporate manslaughter and most have involved small companies.  Do the police, who are trained to investigate and prosecute individuals (or small numbers of people) have the right skills and business acumen to fairly investigate commercial entities?  



Why the Corporate Manslaughter and Corporate Homicide Act 2007 was enacted

The Act was passed by the Labour government and was designed to replace the ineffectual common law offence of corporate manslaughter, whose deficiencies were grossly highlighted during the Herald of Free Enterprise trial.

In March 1987, the MS Herald of Free Enterprise, a Townsend Thoresen branded roll-on roll-off (RORO) passenger and car ferry owned by European Ferries capsized shortly after setting sail. 

The tragedy occurred because the bow doors were not closed before the ship sailed and she was three feet lower in the water than usual to allow for vehicles to be driven on to the E deck.

193 passengers and crew died as a result of the capsize, most from hypothermia.  The parent company of Townsend Thoresen, P&O was charged with corporate manslaughter, but the trial collapsed due to Mr Justice Turner ruling there was insufficient evidence against the company.

Under common law corporate manslaughter, a precedent had developed that prosecutors would need to find a senior person who could be labelled the company’s “controlling mind” to charge an organisation with the offence.  This person would need to be as culpable as the organisation they worked for or owned.  Known as the ‘identification doctrine’, it was abolished under the Act.  Instead, the prosecution had to prove there had been a gross breach of a duty of care and any deaths are the result of “the way in which [an organisation’s] activities are managed or organised by its senior management.”


Does the Corporate Manslaughter and Corporate Homicide Act 2007 allow for large and small organisations to be prosecuted fairly?

Chris Warburton, in his article entitled, Corporate Manslaughter: In Deep Water  includes quotes from several professionals who state that the Act has done little to make investigating large companies any easier.  Smaller companies are easier to prosecute because senior management are closer to the ‘shop floor’, therefore more likely to be involved in the incident.

Celia Wells, a retired academic whose work has been influential in the development of an organisational theory of corporate criminal liability, told Mr Warburton that the Act’s use of the term “senior management” narrows the circumstances in which the Act can apply.

“After all, corporate failings can be systemic and widespread without senior managers having direct and personal knowledge of them”. 

In addition, there are doubts in some quarters whether the police are sufficiently trained and experienced to investigate corporate manslaughter prosecutions.  Police cases usually involve bringing a prosecution against a single or small group of individuals.  This is a challenging job in itself, but do such skills transfer into investigating the intricacies of corporate governance and structure, which is vital when trying to establish a case of corporate manslaughter?  And more importantly, if a case of corporate manslaughter is established, has the investigation taken into account the realities of commercial life and running a complex entity?

Penalties for corporate manslaughter

As most of the organisations prosecuted for corporate manslaughter have been small in scale, the average penalty for corporate manslaughter has been relatively low (£58,030 in 2016/17).

However, the new Sentencing Guidelines for health and safety offences, brought out in February 2016, have seen companies sentenced to huge fines .  Some state that the ability to hand down multi-million-pound fines for health and safety breaches renders the offence of corporate manslaughter obsolete.  However, others argue that the reputational damage done by a corporate manslaughter charge is just as powerful as a crippling fine.  

This has been recently illustrated in the case of PR company, Bell Pottinger, whose fall from grace was swift and brutal after its reputation was destroyed following the scandal where it was accused of stirring up racial tension in South Africa .

Given that the collapse of a large organisation can cost hundreds of employees their livelihoods, it is imperative that any criminal allegations that could cause investors and customers to abandon the entity only be brought after a lengthy, highly considered investigation.

In summary

Many believe that the Corporate Manslaughter and Corporate Homicide Act 2007 and the stigma provided by attaching the term ‘manslaughter’ to the offence has done much to encourage large organisations to put health and safety at the forefront of their compliance strategy.

Whether the Act has the flexibility required to bring a successful prosecution against a large corporation has yet to be tested.  But its time may have come.  The Grenfell Fire tragedy has sparked anger and protest throughout the community.  But, regardless of the high emotions surrounding the incident, it is imperative a diligent investigation is carried out on companies deemed responsible by people who have the experience required to understand how large organisations operate.  Despite their skills and diligence, there are questions as to whether the police are the right body to investigate corporate manslaughter.  Perhaps it is time for the Corporate Manslaughter and Corporate Homicide Act 2007 to be reformed, setting up a specialist investigation unit comprised of individuals who have worked in the commercial sphere and understand the realities of running a large organisation and implementing health and safety measures within such complex structures.  

Fisher Scoggins Waters is a London based law firm who are experts in construction, manufacturing, and engineering law.  If you have any questions about health and safety matters or require an emergency response to an incident, please phone us on 0207 993 6960.

Follow our company page on linkedin for future updates and our views on the latest developments

Categories: Health & Safety

Please leave a comment

Enter the name you would like to appear on the comment.
(required)
Enter the email you would like to use to get updates. You email is not visible and can not be used by other users.
(required)
Enter you comment help.

 
  Post Comment

Book Launch - 27 November 2019

Will you be joining us?

HSE and Environment Agency prosecution: A new climate

27 November 2019 | Bloomsbury, 50 Bedford Square, London, WC1B 3DP

Event Registration

First name
Surname
Email address
Any additional information
Post/Event URL
Post/Event Title
CAPTCHA image
Enter the code shown above in the box below.

Tag Cloud

‘fit for purpose’ obligations 2016 Adjudication adjudication lawyer Adjudication Notice Adjudication process appeal appointing an adjudicator Arbitration Artificial Intelligence Asbestos benefits of off-site construction bonfires book launch breach of contract Brexit Building Defects business interruption Business Interruption Insurance CDM CDM Regulations chambers and partners Charlotte Waters civil proceedings claim payments Claims client COMAH commercial contracts complex construction claims Compliance compulsory sprinklers in warehouses consequential loss construction Construction Construction & Engineering construction contract Construction contract dispute Construction contracts Construction dispute construction dispute lawyer construction dispute resolution construction dispute resolution solicitor construction dispute solicitors Construction Disputes Resolution Construction industry Construction Magazine contracts Contribution claim Corporate Manslaughter Corporate Responsibility costs criminal investigation criminal proceedings cut out fuse Defective Building Work Defective Premises Act developer developers disadvantages of off-site construction Disaster disaster claim Disasters Dispute dispute resolution Disputes DPA Dr Louise Smail Emergency response Emergency Response Solicitors enforcement notices Engineering Engineering dispute Environment Agency environment law Environmental Environmental Agency Environmental damage Environmental Law environmental waste EU EU Procurement Europe Evidence Expert evidence expert witness falls from height Fatal Accidents fee for intervention Fees For Intervention FFI FIDIC Contracts fine Fines Fire Fire Claim fire claims fire damage fire damage lawyers fire sprinkler systems fireworks flood flood claim flood damage food hygiene Fracking fracking claims Fraudulent claims FSW Gross Negligence Manslaughter Guide to Adjudication H&S fine increases; health and safety fines; Health & Safety health & safety breach health & safety sentences health & safety sentencing guidelines health & safety sentencing large corporations health and safety health and safety Health and Safety Executive heave Higher Fines Honey Rose v R How to appoint an adjudicator HSE Insolvency insolvent insurance Insurance Act 2015 insurance bill Insurance Broker insurance claim insurance cover Insurance Disclosure Insurance Disclosure insurance dispute insurance dispute solicitors Insurance Warranties ISO 45001 join us joint venture Judicial Review latest news Law Lawyer legal 500 legal advice privilege Legal Expense Insurance legal professional privilege legal retainers Liability Liquidated Damages Litigation litigation privilege local bodies magistrates’ courts Major Property Damage Manufacturing Martinisation material breach Mediation Michael Appleby Micheal appleby modern methods of construction (MMC) modular construction Mr. Gutaj Notice of adjudication panel firms party wall Performance Bond planning powers of an adjudicator pre-fabrication procurement procurement injunction procurement model Property Damage property danage Public Contract Public Contracts Public Contracts Regulations public procurement public procurement challenges public procurement relationship public sector Publicity Order PUWER recruitment regulation 11 Relief Resolution riot Riot Compensation Act 2016 Risk Risk Assessment safety in the workplace Sanctions Self-build sentence sentencing sentencing guidelines Serious Fraud Office SME Sneller Sony specialist risk and safety consultant Statute Barred Sub-Contractors subrogation subsidance subsidence TCC TCC Guidance team Technology and Construction Court The Adjudicator’s Decision and Costs The Enterprise Act The Lord Young Reforms The Powers Of An Adjudicator The Public Contracts Regulations 2015 The referral notice and response Training tree root UK Underwriters Warehouse insurance Warranties waste water damage WEEE What is Adjudication? what should an adjudication refal notice contain work equipment

Search The Site

Accreditations

 

The Legal 500 - The Clients Guide to Law Firms


Contact Us Now For Advice And Guidance

Enter your name
Enter your surname
Enter your Email
Ask us a Question?