Corporate Manslaughter Act Prosecutions

Corporate Manslaughter Act - 4 years in force and only 2 prosecutions. Why?

In recognition of the 4th anniversary of the Corporate Manslaughter Act coming into force I have written a couple of articles recently looking at the reason for the lack of prosecutions to date. I thought I would summarise some of the points I made in these articles and see if they generate any discussion…

We all knew there would be a delay in these cases coming through because of the length of time the investigations of fatal accidents take; however, after four years and hundreds of deaths, one conviction and one other prosecution in the pipeline seems a perplexingly small number.

By contrast, the HSE has prosecuted about 50 companies for fatal accidents occurring since the Act came into force.

The comparison with HSE prosecutions is not entirely fair of course, and it must be acknowledged that prosecutions under the Act are going to be relatively infrequent because of the requirement for the company’s failings to be gross and to implicate the company’s senior management.

That said, there have been surely more than two cases that have been sufficiently bad and which have involved senior management (particularly those cases involving small companies) since April 2008. We can probably all think of examples of cases in which we have been involved where a charge of corporate manslaughter would not be / have been unreasonable.

The time lag and the specific requirements of the offence then do not provide a complete answer.A greater problem I think lies in the machinery for the investigation of corporate manslaughter in this country.

Taking a step back does it not seem a little bizarre that when it comes to the most serious accidents: those involving deaths, and the most complex: those involving possible corporate offending, the HSE - subject matter experts when it comes to investigating industrial accidents - have no direct role in the manslaughter investigation? Instead the cases are investigated by police officers who have frequently never investigated an industrial accident before - with its many peculiarities.

There may be some fatal accidents where police are the appropriate investigating body – road traffic accidents for example – but in the majority of cases investigating a fatal accident is nothing like other police work. Additionally, outside of road traffic accident investigation, there is (to my knowledge) no specialist unit within the police force that might serve to consolidate the experience of fatal accident investigations.

By contrast the CPS does have a specialist team advising on these cases but, as far as I am aware, they are reliant on the police identifying potential corporate manslaughter cases and seeking advice; if the police are unfamiliar with the area of law they may not be in a position to identify and seek advice on corporate manslaughter as a possible charge.

In addition to this the police do not have the investigative tools that would give them a greater chance of detecting corporate wrong doing.

They do not have the broad powers of the HSE Inspector under HSWA s.20. They cannot compel answers in interviews – a significant investigative tool; they can merely invite a company to nominate a representative to attend for interview with precious little sanction for those that decline. And if the police want to compel disclosure of documentation they must obtain a warrant, a far more complex process than the exercise by an HSE Inspector of his power to require the production of documents.

There may be compelling historical or other principles that explain the current regime but it seems unlikely to me that we will see any particular increase in prosecutions for corporate manslaughter without some changes to the investigative machinery.

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