Five Years On

Five Years On: TheImpact of theCorporateManslaughter andCorporate HomicideAct 2007—Plus çachange?Sarah FieldLucy Jones

Breach of duty of care; Corporate homicide; Corporateliability; Corporate manslaughter; Death in custody;Police forces

IntroductionThe Corporate Manslaughter and Corporate HomicideAct 2007 (“CMCHA”) establishes a new offence ofcorporate manslaughter.1 The Act received Royal Assentin July 2007 and came into force on April 6, 20082 (withthe exception of the provision relating to liability for deathin custodial institutions which was brought into force onSeptember 1, 2011).3Under the Act an organisation4maybe convicted of corporate manslaughter if the organisationowes a duty to take reasonable care for an individual’ssafety and the way in which activities of the organisationhave been managed or organised, at least in part by seniormanagement, amounts to a gross breach of that duty andcauses the individual’s death. The focus of the Act is onorganisational liability and it does not permit piercing of

the corporate veil, even where directors are clearlyresponsible for the corporate policies and practices thatsignificantly contributed to the death of an individual.Prior to the enactment of the CMCHA, in

circumstances where an individual was killed as a resultof corporate negligence, the courts and prosecutingauthorities had to rely on the common law offence ofinvoluntary manslaughter. However, problems havetraditionally arisen in imposing criminal liability on anartificial legal body: a corporation may be vicariouslyliable for the negligent acts and omissions of an employeeduring the course of his employment5 but the courts haveruled that the principle of vicarious liability does notextend to manslaughter. Instead, the courts have drawnupon the “identification principle”,6 which operates onthe basis that a body corporate is imputed with thephysical being and will of its directing mind.7 In relationto the offence of involuntarymanslaughter a corporation’sguilt could only be established if it was possible to linkthe grossly negligent act of an employee through a chainof command, to the “controlling” or “directing mind”.8

The difficulty with such an approach was that anorganisation could only be convicted if a person in theorganisation, who is sufficiently senior to represent the“directing mind” of the organisation, was proved to havethe requisite knowledge and fault. However, thecomplexity of multi-layered structures within acorporation (other than in small private companies) hastraditionally proved an obstacle to establishing thenecessary link between a culpable employee and thedirecting mind. The few companies convicted ofmanslaughter prior to the CMCHAwere small companieswhere it was easier to identify a culpable individual withinthe organisation.9

Similar obstacles have faced the prosecuting authoritieswith regard to the police force. Deaths in police custody10

are comparatively infrequent—there were 21 deaths inpolice custody in 2011.11 When they do occur, it seemsthat even where it is found that there has been the “mostserious neglect of duty”12 there is rarely a successfulprosecution of individual police officers,13 and criminal

1The offence is called corporate manslaughter in England, Wales and North Ireland and corporate homicide in Scotland.2The Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No.1) Order 2008 (SI 2008/401 (C. 15)).3The CorporateManslaughter and Corporate Homicide Act 2007 (Commencement No.3) Order 2011 (SI 2011/1867 (C. 69)). Implementation of the clause covering custodydeaths was delayed in order to give police forces and prisons time to inspect their custody facilities and make sure they were up to standard.4CMCHA s.1(2) defines a relevant organisation as: (a) a corporation; (b) a department or other body listed in CMCHA Sch.1; (c) a police force; and (d) a partnership, ortrade union or employers’ association that is an employer.5Coppen v Moore (No.2) [1898] 2 Q.B. 306 QBD.6R. v HM Coroner for East Kent Ex p. Spooner (1989) 88 Cr. App. R. 10 QBD.7This rule is criticised by C. Wells, “Culture, Risk and Criminal Liability” (August 1993) Crim. Law. 551, 558–561 and 563.8A. Pinto and M. Evans, Corporate Criminal Liability (London: Sweet & Maxwell, 2008), p.219.9A notable pre-CMCHA example is R. v Kite [1996] 2 Cr. App. R. (S.) 295 CA (Crim Div), the first conviction in England and Wales of a company for manslaughter. Inthat case OLL Ltd, a small company, operated an activity centre. The company was prosecuted following an accident in which four pupils drowned on a canoeing trip atthe centre. Evidence established that the company routinely employed unqualified staff and did not train them, and that the supervision of the canoeing trip was grosslyinadequate. The company was fined £60,000, which was said to represent its entire asset, and its managing director, Peter Kite, was sentenced to three years’ imprisonment,reduced on appeal to two.10According to the National Policing Improvement Agency (NPIA), there are four categories which define death in custody or following contact with the police: (1) fatalroad traffic accidents involving the police; (2) fatal shooting incidents involving the police; (3) deaths in or following police custody; and (4) deaths during or followingother types of contact with the police. See NPIA, Guidance on the Safer Detention and Handling of Persons in Police Custody, 2nd edn (2012). This article is concernedprimarily with category (3).11 See http://inquest.gn.apc.org/website/statistics/deaths-in-police-custody [Accessed March 28, 2013].12 Independent Police Complaints Commission, “Report of the review into the events leading up to and following the death of Christopher Alder on 1st April 1998” (StationeryOffice Ltd, 2006).13 See http://www.inquest.org.uk/ [Accessed March 28, 2013]. A rare example is that of PC Simon Harwood who on October 17, 2011 was charged with the manslaughterof Ian Tomlinson. Tomlinson collapsed and died after he was hit by a baton and pushed to the ground by PC Harwood at the G20 protests in London. Harwood pleaded notguilty to the charge [and his trial was due to be heard in October 2012].

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liability of police forces for management failure whichmay be in part to blame for the loss of life have neverbeen subject to criminal prosecution.14 Out of the 333cases of recorded deaths in or following police custodybetween 1999 and 2009, prosecutions were recommendedby the IPCC against 13 officers, including 14 charges formanslaughter, none of which resulted in a conviction.15

However, the inclusion in the CMCHA 200716 of thepolice as an organisation that falls within the remit of theAct potentially heralds a significant development.

ContextCriminal liability in England andWales typically requiresthe prosecution to prove that the defendant committedthe prohibited conduct (the actus reus) while in a specifiedstate of mind, i.e. on proof of a culpability element(traditionally known as mens rea or a “guilty mind”).Where the prosecution are seeking a conviction formanslaughter they will need to prove either that thedefendant committed the unlawful killing of the victimby a positive act (unlawful act manslaughter) or througha failure to act where the victim is owed a duty of careby the perpetrator (gross negligence manslaughter). Theculpability element in the latter is the requirement for thenegligence to be gross.In R. v Bateman, where a doctor’s patient had died

during labour, Lord Hewart C.J. defined gross negligencemanslaughter in these terms:

“[I]n order to establish criminal liability the factsmust be such that, in the opinion of the jury, thenegligence of the accused went beyond a merematter of compensation between subjects andshowed such disregard for the life and safety ofothers as to amount to a crime against the state andconduct deserving of punishment.”17

However, problems have arisen in imposing criminalliability on an artificial legal construct such as a company.In Spooner, according to Bingham L.J., in order for acompany to be criminally liable for manslaughter

“[i]t is required that the mens rea and actus reus ofmanslaughter should be established not against thosewho acted for or in the name of the company butagainst those who were to be identified as theembodiment of the company itself.”18

This theory—the “identification” or “directing mind”theory—formed the basis of the common law offence ofcorporate manslaughter. The effect of this doctrine wasthat while individuals in a corporation could face chargesof gross negligence manslaughter,19 a corporation wouldonly incur criminal liability (“corporate manslaughter”)through its controlling officers.The difficulty with such an approach is that an

organisation can only be convicted if a person in theorganisation who is sufficiently senior to represent the“directing mind” of the organisation is proved to havethe requisite knowledge and fault. However, thecomplexity of multi-layered structures within acorporation (other than in small private companies) hastraditionally proved an obstacle to establishing thenecessary link between a culpable employee and thedirecting mind. By way of illustration, the trial of P&OFerries for corporate manslaughter following the capsizeof the Herald of Free Enterprise in Zeebrugge harbourand the subsequent deaths of 193 passengers and crew20

collapsed when Turner J. directed the jury to acquit thecompany of manslaughter, largely because it was notpossible to identify any senior individual as thecontrolling mind of the company and individually liablefor manslaughter.21 The few companies that have beensuccessfully convicted of manslaughter are smallcompanies where it is easier to identify a culpableindividual within the organisation.22

The Corporate Manslaughter andCorporate Homicide Act 2007There has been much criticism of failed prosecutions ofwork related fatalities or of the failure to bringprosecutions because of anticipated problems of proof,23

and Parliament attempted to address these deficienciesby the enactment of the CMCHA 2007. The Act onlyapplies to corporations and some unincorporated bodies,including trade unions, partnerships, and employers’organisations, which can no longer be convicted of the

14A. Sanders, R. Young and A. Burton, Criminal Justice, 4th edn (Oxford: Oxford University Press, 2010), pp.223–228; G. Smith, “A Most Enduring Problem: PoliceComplaints Reform in England and Wales” (2006) 35(1) Journal of Social Policy 121; see http://inquest.gn.apc.org; http://www.justice.org.uk [Both accessed March 28,2013].15M. Hannan et al., “Deaths in or following police custody: An examination of the cases 1998/9–2008/9” (IPCC, 2010), pp.81–82.16The CMCHA received Royal Assent in July 2007 and the majority of its provisions were brought into force on April 6, 2008 by the Corporate Manslaughter and CorporateHomicide Act 2007 (Commencement No.1) Order 2008 (SI 2008/401 (C. 15). For legislative comment see D. Ormerod and R. Taylor, “The Corporate Manslaughter andCorporate Homicide Act 2007” [2008] Crim. Law. 589.17R. v Bateman (1927) 19 Cr. App. R. 8 at 11–12. In R. v Adomako [1994] 3 All E.R. 79 HL, the leading case in this area of law, an anaesthetist failed to notice thedisconnection of the tube from a ventilator supplying oxygen. The House of Lords held that a defendant was properly convicted of involuntary manslaughter by breach ofduty if the jury found that the defendant was in breach of a duty of care towards the victim who died, that the breach of duty caused the death of the victim, and that thebreach of duty was such as to be characterised as gross negligence and therefore a crime.18 Spooner (1989) 88 Cr. App. R. 10 at 16.19A charge that still exists today.20R. v P&O Ferries (Dover) Ltd (1991) 93 Cr. App. R. 72 Central Criminal Court.21C.M.V. Clarkson, “Corporate Manslaughter: Yet More Government Proposals” [2005] Crim. Law 677.22 See R. v Kite [1996] 2 Cr. App. R. (S.) 295.23 P. Almond, “Regulation Crisis: Evaluating the Potential Legitimizing Effects of “Corporate Manslaughter” Cases” (2007) 29 Law & Policy 285; G. Slapper, “CorporateHomicide and Legal Chaos”, (1999) 149 New Law Journal 1031; S. Tombs and D. Whyte, “A deadly consensus: worker safety and regulatory degradation under NewLabour” (2010) 50(1) British Journal of Criminology 46.

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common law offence of gross negligence manslaughter(s.20) but it does not apply to individuals, and anindividual cannot be guilty of aiding, abetting, counsellingor procuring the offence.The Act provides that a relevant organisation24 may be

convicted of corporate manslaughter if the manner inwhich its activities are managed or organised causes adeath and amounts to a gross breach of a duty to takereasonable care for a person’s safety; a substantial partof the breach must have been attributable to seniormanagement failure in the organisation.25 Reflecting thecommon law offence of gross negligence manslaughter,the offence only applies where an organisation owes aduty of care to a victim arising out of certain specificfunctions or activities performed by the organisation.26

The CMCHA 2007 is designed to complement thecurrent law under which individuals can be prosecutedfor gross negligence manslaughter by introducing amanslaughter offence specifically aimed at organisationsand where corporate liability for homicide is not subjectto the fiction of identification. Although individuals suchas directors and employees cannot be prosecuted underthe Act, if they have been grossly negligent they may stillface a personal manslaughter charge under the commonlaw.CMCHA s.1(1) provides:

“An organisation … is guilty of an offence if theway in which its activities are managed or organised—(a) causes a person’s death, and(b) amounts to a gross breach of a relevant

duty of care owed by the organisation tothe deceased.”27

A “gross” breach is one that falls far below the standardthat can reasonably be expected of the organisation in thecircumstances. The offence is only committed where theway in which the organisation’s activities are managedor organised by its senior management is a substantialelement in the gross breach of a duty to take reasonablecare (s.1(3)).The offence requires the failure of senior management,

which is defined in s.1(4) as the persons who

“play significant roles in either the making ofdecisions about how the whole or a substantial partof its activities are to be managed or organised, orthe actual managing or organising of the whole ora substantial part of those activities.”

The meaning of “significant [role]” is undefined, butclearly in the case of a company there is a requirementfor a level of authority deriving directly or indirectly, viaa delegation of authority, from the directing mind.28

The CMCHA abolishes the common law identificationprinciple, in the second part of the definition, by removingthe requirement that liability must be determinedexclusively by reference to the directing mind of acompany.29 A company may therefore be liable forcorporate manslaughter if senior management organisesor manages an actual activity which results in a fatalitywithout the need to prove that the senior manager wasobeying policies or instructions laid down by the boardof directors. However, where companies have complexmanagement structures the establishment of seniormanagement failure may prove difficult.The Government’s Regulatory Impact Assessment

projected that the Act will not generate more than 10 to13 successful prosecutions per annum, 30 despite the factthere are on average 19631workers per year fatally injuredin the United Kingdom.

Figure 1 Health and Safety Executive Statistics onfatal injuries in the workplace32

It is pertinent to note that since coming into force onApril 6, 2008, there have been 104 prosecutions as a resultof fatalities at work33 (the majority for breaches under theHealth and Safety at Work etc. Act 1974), but only three

24CMCHA 2007 s.1(2) defines a relevant organisation as (a) a corporation; (b) a department or other body listed in CMCHA Sch.1; (c) a police force; and (d) a partnership,or trade union or employers’ association that is an employer.25CMCHA 2007 s.1.26CMCHA 2007 s.2.27Emphasis added.28 S. Griffin, “Corporate Manslaughter: A Radical Reform?” (2007) 71 Journal of Criminal Law 151.29 S. Griffin and J. Moran, “Accountability for Deaths Attributable to the Gross Negligent Act or Omission of a Police Force: The Impact of the Corporate Manslaughterand Corporate Homicide Act 2007” (2010) 74 Journal of Criminal Law 358.30Home Office, Corporate Manslaughter and Corporate Homicide: A Regulatory Impact Assessment of the Government’s Bill (London: Home Office, 2006).31Average number of deaths to workers 2006/07 to 2010/11. See http://www.hse.gov.uk/statistics/ [Accessed March 28, 2013].32 See http://www.hse.gov.uk/statistics/ [Accessed March 28, 2013].33 See http://www.hse.gov.uk/prosecutions/ [Accessed March 28, 2013].

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convictions34 under the CMCHA, two of which were asthe result of guilty pleas.35 On February 15, 2011,Cotswold Geotechnical Holdings (“CGH”) became thefirst company in the United Kingdom to be convicted ofthe offence of corporate manslaughter under the CMCHA2007.36 In convicting the company, its system of workwas berated as being “wholly and unnecessarilydangerous” and a fine of £385,000 imposed on thecompany, which, being in a “parlous state” would bepermitted to pay the sum over a period of 10 years. Thecompany’s application for leave to appeal against the fineand conviction was rejected by the Court of Appeal.37

A second company—JMWFarms Ltd—pleaded guiltyin May 2012 to breaching the CMCHA 2007 and on July3, 2012 Lion Steel Ltd became the third company in theUnited Kingdom to be convicted of the statutory offenceof corporate manslaughter after an employee died as aresult of falling through a roof at one of the firm’s sites.38

Interestingly, the company is listed as a medium-sizedcompany and it was hoped that the case would provideclarification of what is meant by “senior management”and a “substantial part of a company’s activities” underthe Act.39 However, no such insights have been providedsince, although the company was originally charged withcorporate manslaughter, shortly before the trial the judgesevered the corporate manslaughter charge and the trialproceeded against the company on health and safetycharges, and against three individual directors on chargesof gross negligence manslaughter and health and safetycharges.When the cases of gross negligencemanslaughterwere dismissed against two of the directors a decisionwas made by the company to plead guilty to corporatemanslaughter and all remaining charges against thedirectors were dropped.40

On conviction for corporate manslaughter a relevantorganisation is subject to a criminal sanction by way ofan unlimited fine.41 An important point to note is that thecost of fines cannot be met by insurance. Such risks aredeemed to be uninsurable at law. For public policyreasons any insurance contract purporting to insure againstthe risk of criminal fines would be void andunenforceable. It is recognised that if a fine imposed onthe company is very substantial, the result may be thedemise of the organisation.However, monetary sanctions are not the only remedies

available: the use of Remedial Orders and PublicityOrders are specifically provided for. Under s.9, anorganisation can be ordered to take steps to remedy themanagement failure that led to the death.42 RemedialOrders43 are available in cases where corporate failingshave not been remedied by the time of the trial, and wheresuch failings are “sufficiently specific to be enforceable”.44

Failure to comply with the order is punishable onconviction by an unlimited fine. In addition, a court hasthe power to make a Publicity Order45—a “naming andshaming” of convicted corporations—requiring theorganisation to publicise its conviction, details of theparticulars of the offence, the amount of any fine and theterms of any remedial order that has been imposed.Failure to comply with the order is also punishable onconviction by an unlimited fine. Such Orders are onlyavailable in cases of corporate manslaughter and aim tohave both deterrent and punitive effect.46

Deaths in police custodyWhatever view one takes regarding the impact of theCMCHA on the criminal liability of corporations fordeaths in the workplace, it is certainly arguable that thechange which the Act heralds for organisations which arenot corporations is more fundamental.47Although the Act

34The first case was R. v Cotswold Geotechnical Holdings Ltd [2011] EWCA Crim 1137; [2012] 1 Cr. App. R. (S.) 26, and in May 2012 JMW Farms Ltd pleaded guiltyto breaching the CMCHA 2007 and was fined £187,500 at Belfast’s Langanside Crown Court. The third company is Lion Steel Ltd. See http://www.cps.gov.uk/news/press_statements/cps_decision_to_charge_lion_steel_ltd_in_second_corporate_manslaughter_case/; http://www.bbc.co.uk/news/uk-england-manchester-13993270 [Bothaccessed March 28, 2013].35Originally, Cotswold Geotechnical (Holdings) Ltd was charged under CMCHA and the sole director, Peter Eaton, was charged with gross negligence manslaughter, withboth also facing associated health and safety charges. The case against Eaton was stayed owing to his ill health, leaving the company as the sole defendant.36 The Times, February 18, p.16; see http://www.bbc.co.uk/news/uk-england-gloucestershire-12491199 [Accessed March 28, 2013].37Cotswold Geotechnical Holdings [2011] EWCA Crim 1137; [2012] 1 Cr. App. R. (S.) 26. See also A. Dobson, (2012) “Shifting sands: multiple counts in prosecutionsfor corporate manslaughter” [2012] Crim. Law. 200.38The trial commenced in June 2012. See http://www.bbc.co.uk/news/uk-england-manchester-13993270 [Accessed March 28, 2013].39The company is listed as employing more than 100 employees. Geotechnical Holdings Ltd employed fewer than five employees; see http://press.eversheds.com/content/Detail.aspx?ReleaseID=2470&NewsAreaID=328 [Accessed March 28, 2013].40 See http://www.lawgazette.co.uk/in-practice/practice-points/corporate-manslaughter [Accessed March 28, 2013].41CMCHA s.1(7). In accordance with the guidelines published in February 2010 by the Sentencing Guidelines Council (SGC) the appropriate fine following a convictionfor corporate manslaughter will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more. For detailed discussion of the Guidelines,see S. Field and L. Jones, “Death in the workplace: who pays the price?’ (2011) 32 Company Lawyer 166.42The convicted organisation must take specified steps to remedy: (a) the breach mentioned in CMCHA s.1(1) (the relevant breach); (b) any matter that appears to the courtto have resulted from the relevant breach and to have been a cause of death; (c) any deficiency, as regards health and safety matters, in the company’s policies, systems orpractices of which the relevant breach appears to the court to be an indication.43Remedial Orders are also available for certain Health and Safety offences under the provisions of Health and Safety at Work etc. Act 1974 s.42.44 Sentencing Guidelines Council (SGC), 2010: “Corporate Manslaughter and Health and Safety offences causing death” (2010), para.35.45CMCHA 2007 s.10.46 SGC, “Corporate Manslaughter and Health and Safety offences causing death” (2010), para.31.47M. Tyler, “Corporate killing: letter of the law” (2007) 10 Tolley’s Health and Safety at Work 16.



provides various exemptions for the police and other lawenforcement bodies,48 significantly since September 1,201149 police forces have been subject to the CMCHA inrespect of deaths in custody.50 For the purposes ofattracting liability under the Act, a police force51 isdeemed a body corporate, a relevant organisation.52 Thepolice force itself will now be liable to prosecution forcorporate manslaughter.53 In addition, custody providers,whether public or private (contracted service providers)may be criminally liable for deaths of individuals beingtransported to and from immigration detentioncentres54—such as the death of Jimmy Mubenga,55 anAngolan deportee who died after being restrained by G4Sguards56 on a British Airways plane scheduled to fly toAngola. These bodies will, for the first time, faceprosecution for corporate manslaughter.57

According to the Independent Police ComplaintsCommission’s report “Deaths in or following PoliceCustody”,58 between 1999 and 2009, 333 people died inor following police custody. Of these, 87 had beenrestrained, most commonly being physically held downby officers and in 16 of those cases, restraint was linkeddirectly to the death, and four were classed as “positionalasphyxia”.59 Although the number of deaths in custodyis relatively small compared with the number of arrests,60

it is of concern that most suspects were arrested forrelatively minor offences which were often linked tointoxication such as being drunk and incapable/disorderly,public order offences and driving offences.

Figure 2 Deaths in police custody 2000–201161

The latest statistics relating to deaths in or followingpolice custody show that although the number of deathshad been decreasing since 2004/05, in the period2009–2011 there was in fact an increase in these deaths.62

In addition to these figures, the Ministry of Justice hasreported that in 2011 there were 58 self-inflicted deathsamong prisoners in England and Wales.63

At common law, civil liability may be imposed onprison and police authorities when a detainee dies64; thisduty of care extends not only to actions by state officialsbut also to actions of other inmates and self-harm.65

Similarly, negligent conduct by a police force resultingin the death of an individual is vulnerable to a prosecutionunder the HSWA 1974, although such prosecutions havebeen rare, and convictions rarer66: to date only one suchsuccessful prosecution has been recorded against a policeforce, namely, the de Menezes case.67

Inmore recent years, the position has been strengthenedby the duty of all public authorities to safeguard theprisoner’s right to life under art.268 of the EuropeanConvention on Human Rights (“ECHR”), ranked as the

48CMCHA 2007 s.5.49The Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No.3) Order 2011 (SI 2011/1867 (C. 69)).50CMCHA 2007 s.2(1)(d) applies to all deaths in police custody suites, as well as prison cells, mental health detention facilities, young offenders’ institutions, immigrationsuites and Ministry of Defence institutions. Implementation of the clause covering custody deaths was delayed in order to give police forces and prisons time to inspecttheir custody facilities and make sure they were up to standard.51A police force is defined as one within the meaning of: (a) the Police Act 1996 (c.16), or the Police (Scotland) Act 1967 (c.77); (b) the Police Service of Northern Ireland;(c) the Police Service of Northern Ireland Reserve; (d) the British Transport Police Force; (e) the Civil Nuclear Constabulary; and (f) theMinistry of Defence Police (CMCHAs.13).52CMCHA 2007 s.13(2), which provides that “For the purposes of this Act a police force is to be treated as owing whatever duties of care it would owe if it were a bodycorporate”.53This contrasts with prosecutions under the Health and Safety at Work etc. Act 1974 where the prosecution is against the Chief Constable as a corporation sole (HSWAs.51A as amended by the Serious Organised Crime and Police Act 2005 s.158).54 “Persons held in detention or custody” includes being held or transported under immigration or prison escort arrangements: CMCHA 2007 s.2(2).55OnOctober 12, 2010MrMubenga lost consciousness while the British Airways flight was on the runway at Heathrow. He was taken to hospital, where he was pronounceddead; see http://www.guardian.co.uk/uk/2010/oct/14/security-guards-accused-jimmy-mubenga-death?INTCMP=ILCNETTXT3487 [Accessed March 28, 2013].56The inquest into his death started on June 11, 2012; see http://www.inquest.org.uk/tag/jimmy-mubenga [Accessed March 28, 2013]. The report is due out this autumn.57Government bodies are nevertheless afforded protection by matters of public policy and by certain actions in the exercise of an exclusively public function not beingdeemed relevant duties of care.58Hannan et al., “Deaths in or following police custody” (IPCC, 2010).59Hannan et al., “Deaths in or following police custody” (IPCC, 2010), pp.9–10.60Over the 11-year period 1998/9 to 2008/9 the average was 2.2 deaths per 100,000 arrests; Hannan et al., “Deaths in or following police custody” (IPCC, 2010), p.11.61 See http://www.inquest.org.uk/ [Accessed March 28, 2013].62K. Grace, “Deaths during or following police contact: Statistics for England and Wales 2010/11” (IPCC, 2011).63 See http://www.justice.gov.uk/publications/safer-custody.htm [Accessed November 30, 2011].64Reeves v Commissioner for the Police of the Metropolis [2000] A.C. 360 HL.65Kirkham v Chief Constable of Greater Manchester Police [1990] 2 Q.B. 283 CA (Civ Div). The police were liable for the death of a prisoner after negligently failing topass on information relating to his suicidal tendencies. See also Reeves [2000] A.C. 360.66A police force will avoid liability under HSWA s.3 if it can establish, on a balance of probabilities, that it was not practicable or not reasonably practicable to do morethan was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement.67 J. Barker and S. Foster, “The use of fatal force, article 2 of the European Convention and the Jean Charles de Menezes case” (2010) 15(2) Cov. L.J. 39.68 S. Foster, “Case comment Renolde v France (5608/05) Unreported October 16, 2008 (ECHR)” (2008) 13(2) Cov. L.J. 32.

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most fundamental provision in the Convention69 andaccording to which the police, prison service and otherpublic authorities70 have a positive duty to ensure thatthey take reasonable measures to protect the lives ofpersons held in detention.71The European Court of HumanRights has, however, taken a cautious approach towardsa state’s obligations under art.2 where a prisoner takeshis own life: the duty of care is only owed where theauthorities knew or should have known of the individual’ssuicide risk and any duty is limited to taking reasonablesteps to avoid a prisoner’s death.72

In spite of the art.2 route, there were until recently fewoptions available to aggrieved parties where death hasoccurred in police custody and critics have long assertedthat criminal liability for institutional failures is lackingboth with regard to fatalities due to corporate negligence,and for deaths attributable to the negligent act or omissionof a police force.73 Illustrative of the deficiencies in thesystem is the fact that of the 12 unlawful killing verdictsreturned by juries at inquests into deaths in custodybetween 1990 and 2011, none has led to a successfulprosecution.74

The implementation of the death in custody provisionsin the Corporate Manslaughter and Corporate HomicideAct has been broadly welcomed as a move toward greateraccountability of the police force and other custodyproviders.75 It is clear that the offence is aimed at systemicfailures to manage safety in organisations; themanagement failure need not be the sole cause of deathbut the conduct which causes the breach must fall “farbelow”what could reasonably be expected. Although theCMCHA lacks a specific test in the assessment of whatis “reasonable”, it seems likely that it will

“be measured by standards ordinarily expected of areasonable diligent police force, competent in thecompliance and enforcement of health and safetymatters”.76

As John Coppen, the Police Federation representative forpolice sergeants, has intimated,77 if a detainee were tohang themselves in a police cell, not only would thecustody sergeant be subject to questioning, but therewould also be scrutiny of the design of the cell; whether

there were, for example, any ligature points that shouldhave been removed. Conversely, a corporation will notbe liable under the Act where a death occurs but there arereasonable safeguards in place relating to themanagementof the activity.While the term “management failure” is not used, the

Act requires the way in which an organisation’s activitiesare managed or organised “by its senior management” tobe a substantial element in the breach of the duty of care.“Senior management” is defined in s.1(4) CMCHA aspeople who play a significant role in making decisionsabout how the whole or a substantial part of theorganisation’s activities are managed, or in the actualmanaging or organising of the whole or a substantial partof the activities. The test of “senior management” is saidto be “wider” than the “controlling mind” which wasrequired at common law,78 but it is clearly indicative ofa certain level of authority emanating directly orindirectly, via a delegation of authority from theorganisation’s controlling mind.79

The interpretation of the term “senior management” inthe context of a police force raises some interestingquestions: it will undoubtedly include the chief constable,and the deputy or assistant chief constable. In addition,a police superintendent responsible for the managementof a specific police station would appear to fall within itsremit. What is less clear is how far the definition willgo—whether for example for the purposes of the CMCHAit will extend to custody officers.In spite of their relatively lowly rank, it is widely

accepted that a custody officer plays a significant role in“managing or organising” custody suites. Lord JusticeMcCowan, for example, in Vince v Chief Constable ofDorset,80 observed that PACE placed “heavy andimportant duties” upon a custody officer, and the PoliceFederation of England and Wales.Sergeants Central Committee refers to police custody

sergeants as “The Linchpin of the Criminal JusticeSystem”.81 Significantly, in its most recent “Guidance onthe Safer Detention and Handling of Persons in PoliceCustody”82 for the Association of Chief Police Officers(“ACPO”), the National Policing Improvement Agency

69McCann v United Kingdom (1996) 21 E.H.R.R. 97 ECtHR at [147]; R. (on the application of Bloggs 61) v Secretary of State for the Home Department [2003] 1 W.L.R.2724 CA (Civ Div) at [63].70Human Rights Act 1998 s.6 provides that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right”. The meaning of publicauthority is expanded by s.6(3)(b) to include any person “certain whose functions are of a public nature” and would therefore include for example prisons run by privatecompanies.71Osman v United Kingdom (1998) 29 E.H.H.R. 245 ECtHR.72Orange v Chief Constable of West Yorkshire Police [2006] 1 W.L.R. 1155 CA (Civ Div).73Sanders, Young and Burton, Criminal Justice (2010), pp.191–194; G. Smith, “AMost Enduring Problem: Police Complaints Reform in England andWales” (2006) 35(1)Journal of Social Policy 121; see http://inquest.gn.apc.org; http://www.justice.org.uk [Both accessed March 28, 2013].74 Inquest Press Release, “Move Towards Greater Accountability for Deaths in Custody Welcomed” (August 31, 2011), http://www.inquest.org.uk/ [Accessed March 28,2013].75 Inquest Press Release, “Move Towards Greater Accountability for Deaths in Custody Welcomed” (August 31, 2011), http://www.inquest.org.uk/ [Accessed March 28,2013].76Griffin and Moran, “Accountability for Deaths Attributable to the Gross Negligent Act or Omission of a Police Force” (2010) 74 Journal of Criminal Law 363.77 See http://www.guardian.co.uk/uk2011/aug/28/corporate-homicide-law-prison-police [Accessed October 10, 2011].78 See http://wwww.cps.gov/legal/a_to_c/corporate manslaughter/ [Accessed September 6, 2011].79Griffin, “Corporate Manslaughter” (2007) 71 Journal of Criminal Law 151.80Vince v Chief Constable of Dorset [1993] 1 W.L.R. 415 CA (Civ Div).81Police Federation of England and Wales Sergeants Central Committee Briefing Paper (February 2008), http://www.polfed.org/custody_sergeants_briefing_paper_web.pdf [Accessed April 15, 2012].82NPIA, Guidance on the Safer Detention and Handling of Persons in Police Custody (2012), http://www.homeoffice.gov.uk/publications/police/operational-policing/safer-detention-guidance-2012 [Accessed March 28, 2013].



(“NPIA”) states that “Responsibility for managing thefirst actions following a successful intervention83 lies withthe custody officer”.Anyone appointed to be a custody officer must be at

least of the rank of sergeant (s.36(3)) but subs.(4)84 alsoallows an officer who is not a sergeant to perform thisrole. Moreover, since the Court of Appeal in Vince v ChiefConstable of Dorset85 determined that a chief constableis not under a statutory duty under PACE s.36 to appointa sufficient number of custody officers to ensure that ateach designated police station there will ordinarily beavailable a custody officer, and further, that s.36(4) wasnot to be read as applying only “in the event of someoperational emergency or other unforeseencircumstances”, the likelihood of officers withoutadequate training performing this role is very real.A custody officer is responsible inter alia for a

detainee’s health and safety, including identifying anyspecial needs, not only with regard to physical andmentaldisabilities, but also whether the detainee presents anyrisk of self-harm. Part of their role involves monitoringand observing detainees to minimise or negate any suchrisk in accordance with the procedures contained inPACE. Given the significance of the role, therefore, it iscertainly arguable therefore that the custody officer wouldfall within the “senior management” provisions of theCMCHA.Further support for the view that a custody officer may

fall within the remit of the Act may be found throughapplication of the aggregation theory. This holds thatcorporate criminal liability does not have to be contingentupon one individual employee’s satisfying the relevantcriteria for liability.86 There is support in the United Statesfor this approach, known as the “collective knowledge”doctrine,87 according to which companies are vicariouslyliable for the behaviour of their employees, whatever theirstatus in the organisation, and by virtue of which, theconduct and fault elements of the employees can beaggregated so as to render the company liable. In theUnited Kingdom, cases on corporate manslaughter havetraditionally rejected this approach88; however, some haveexpressed the view that the 2007 Act would now appearto embrace the aggregation concept in limited form89 bythe linkage in s.1(4) of “senior management” to persons“who play significant roles” in the making or executionof decisions within the company.

An alternative view is that the custody officer wouldin fact fall outside the remit of “senior management”, butthat liability could nevertheless be imposed on the policeforce because, for example, of failure of the senior officersto ensure that the custody officer (or others responsiblefor detainees) compliedwith the guidance for the handlingof persons in police custody,90 or because of failure ofsenior management to provide adequate training forofficers undertaking a custody role. As Ormerod andTaylor91 have argued, a senior management decision togive overall responsibility for health and safety to a personat an inappropriate low level of authority or experiencecould be damning evidence of the way in which theorganisation’s activities are managed or organised by itssenior management; an argument that finds particularresonance here.

ConclusionThere has been much criticism of failed prosecutions ofwork related fatalities92 and whether there is a real changein practical terms will depend to a large degree on theextent to which the prosecuting authorities are willing tomake use of the new offences available to them.Indications to date are less than promising: in spite ofnumerous cases where death has occurred in theworkplace since the inception of the CMCHA,93 the Acthas resulted in one trial with a successful conviction—ofa small company, Geotechnical Holdings,94 which wouldmost probably have fallen foul of pre-2007 provisions inany event—and two guilty pleas. An overly cautiousapproach to prosecuting under the Act will by definitioncurtail the impact of the provisions.It is certainly arguable that police accountability has

been advanced by the CMCHA insofar as the principleand practice of invoking police accountability is nowenshrined in statute; transparency and public confidencein the policing system will be better served. In addition,the Act may have a deterrent effect insofar as it acts as areminder to organisations to provide better training insafety management, and thereby prevent future deaths incustody and the workplace.However, it is the language of the Act itself that will

ultimately prove to be pivotal: should a complex casemake it as far as the courts, much will rest on theinterpretation by the courts of the term “senior

83NPIA, Guidance on the Safer Detention and Handling of Persons in Police Custody (2012), http://www.homeoffice.gov.uk/publications/police/operational-policing/safer-detention-guidance-2012 [Accessed March 28, 2013]. “The terms ‘successful intervention’ and/or ‘adverse incident’ mean: Any incident which, if allowed to continue toits ultimate conclusion, would have resulted in the death, serious injury or harm to any person.”84 PACE 1984 s.36(4): “an officer of any rank may perform the functions of a custody officer at a designated police station if the custody office is not readily available toperform them.”85Vince [1993] 1 W.L.R. 415.86Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 A.C. 500 PC (New Zealand); R. v St Regis Paper Co Ltd [2012] 1 Cr. App. R. 14 CA(Crim Div).87US v TIME-DC 381 F. Supp 730 (W.D. Pa. 1974); and United States v Bank of New England 821 F. 2d 844 (1st Cir. 1987).88C. Wells, Corporations and Criminal Responsibility, 2nd edn (Oxford: Oxford University Press, 2001), pp.154–160.89 J. Gobert, “The Corporate Manslaughter and Homicide Act 2007 — Thirteen Years in the Making but was it Worth the Wait?” (2007) 71 Modern Law Review 426.90 See NPIA, Guidance on the Safer Detention and Handling of Persons in Police Custody (2012); and PACE 1984 Code C.91Ormerod and Taylor, “The Corporate Manslaughter and Corporate Homicide Act 2007”, [2008] Crim. Law. 589.92Almond, “Regulation Crisis” (2007) 29 Law & Policy 285; Slapper, “Corporate Homicide and Legal Chaos” (1999) 149 New Law Journal 1031; Tombs and Whyte, “Adeadly consensus” (2010) 50(1) British Journal of Criminology 46.93Between April 2008 and April 2012 there have been there have been 670 fatalities to workers at work. See http://www.hse.gov.uk/statistics/ [Accessed March 28, 2013].94R. v Cotswold Geotechnical Holdings [2011] EWCACrim 1137; [2012] 1 Cr. App. R. (S.) 26. In convicting the company, its system of work was berated as being “whollyand unnecessarily dangerous” and a fine of £385,000 was imposed.

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management”; in particular, how far it is wider than the“controlling mind” which was required at common law.With regard to the police force, one view is that liabilityunder the Act would extend to relatively low rankingpolice officers owing to the combined effect of CMCHA2007 and PACE 1984; another, that the wrongful acts ofthese employees could—indeed, should—be factored into

the assessment of whether there has been a failure of“senior management”. Nonetheless, the challenge ofsecuring the conviction of an organisation with complexmulti-layered structures remains—and it is one that willhave to be overcome if the CMCHA 2007 is to advanceaccountability in real terms.



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