15/09/2017
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.