“Anthropomorphism No More” A Brief Guide To The Corporate Manslaughter And Corporate Homicide Act 2007

Companies can, in principle, be held responsible in criminal law for causing the death of employees or of members of the public. Around 240 people are killed at work in the United Kingdom per year1. The risk of fatal injuries to employees is, of course, greater in some industries: for example, a construction worker faces a risk of death 4.6 times greater than the national average. Large-scale engineering projects can pose considerable risks, though accidents in them are not always widely publicised. More than 15 construction workers died during the construction of the Channel Tunnel. Both fatal accidents of employees and disasters causing the death of members of the public can lead to the imposition of criminal liability on a company. After particularly serious accidents (most recently, a series of rail crashes), there tend to be strong calls for criminal prosecutions due to alleged corporate mismanagement. As we will see, these prosecutions have rarely led to convictions but the law has now changed.

The common law has long since recognised the offence of manslaughter where there is no intention to kill, and companies are not exempt from the criminal law. On 6 April 2008, the provisions of the new Corporate Manslaughter and Corporate Homicide Act 2007 (the "Act") will come into force. The Act will operate in addition to existing health and safety at work legislation (which is not the focus of this article). It reforms the basis on which a company can be found criminally liable for the death of a person to whom it owed a duty of care. The Act applies where the harm resulting in death occurred in the United Kingdom - it does it apply extraterritorially, nor does not apply retrospectively. Any company (whether English or foreign registered) can be made a defendant in a prosecution, provided that the company operates in the United Kingdom.

What does the Act mean for companies and their legal responsibility if fatal accidents occur? This article highlights the key features of the new legislation.

Corporate criminal liability for manslaughter - was it ever a real risk?

The reform of the criminal law leading to the Act originated with a Law Commission report published in 19961. Under the old law, the offence required a corporate defendant to have committed a gross breach of a duty of care owed to the victim.

At common law, criminal offences traditionally require both a "guilty act" (actus reus) and a "guilty state of mind" (mens rea) from the defendant. A company could therefore only be convicted if it could be shown that its "directing mind" was guilty of the offence. A sufficiently senior representative of the company, who by his actions (and thoughts) represented it, was needed. While this "identification" principle has been criticised, it has been consistently upheld by the courts2. Until the recent reform of the law, it remained a constituent of the common law offence, in addition to a duty of care to the victim, a breach of which caused the death.

But past unsuccessful prosecutions for "old" corporate manslaughter have shown the real difficulties in proceeding on such an anthropomorphic basis against large corporations. The more complex the corporate entity and its management structure, the more difficult "identification" is. Lines of responsibility may be blurred, especially where health and safety is not centrally managed. Successful prosecutions for the "old" offence of corporate manslaughter have...