Death resulting from the unintended consequence of another’s act or omission usually generates strong emotion. The bereaved perceive a species of homicide and demand justice. Those directly in the firing line complain of the criminalisation of accident.
In tacit acknowledgement of the latter, the law has developed such that no person may be found guilty of manslaughter absent proof of the commission of an unlawful act that objectively carried with it a real risk of injury, or alternatively, proof of gross negligence. The problem that the law of corporate manslaughter is intended to address is what might be called ‘overarching liability’, i.e. the role of the employer in failing to ensure a safe system and thus increasing the risk to staff, customer, stakeholder or third party.
In the aftermath of several well-publicised disasters such as the Kings Cross fire in 1987, the Southall rail crash of 1997 and the Potters Bar points failure of 2002, cross-party support grew for a revision of the existing health and safety legislation, which was widely, but erroneously, believed to be toothless.
However it is abundantly clear that the resulting Corporate Manslaughter & Corporate Homicide Act 2007 has made no discernible difference. Indeed as of 2020, there have been but a handful of successful prosecutions. The HSE continues to deploy the Health & Safety at Work Act 1974 much as before.
This is not surprising, according to the government, the target of the 2007 Act were ‘organisations that have paid scant regard to the proper management of health and safety with fatal results’. Whereas a large corporation might well plead guilty to generic offences of breach of duty under sections 2, 3 and 33 of the 1974 Act, its senior management will usually balk at meekly admitting corporate manslaughter.
Cost implications, together with the complexity of the statutory regime, have led prosecutors largely to prefer, even if by way of plea bargain, offences that are couched in the language of health and safety rather than that of homicide. It remains to be seen whether the criminal aftermath of the Grenfell conflagration signals a change of approach.
Meanwhile, the relevant Sentencing Guideline, in force since 2016, has led to a substantial increase in the severity of the penalties imposed, largely because the court must now ‘take account of the financial circumstances of the offender’. Crudely, the larger the turnover, the fatter the fine.