239

Five Years On: The

Impact of the
Corporate
Manslaughter and
Corporate Homicide
Act 2007Plus a
change?
Sarah Field
Lucy Jones
Breach of duty of care; Corporate homicide; Corporate
liability; Corporate manslaughter; Death in custody;
Police forces

Introduction
The Corporate Manslaughter and Corporate Homicide
Act 2007 (CMCHA) establishes a new offence of
corporate manslaughter.1 The Act received Royal Assent
in July 2007 and came into force on April 6, 20082 (with
the exception of the provision relating to liability for death
in custodial institutions which was brought into force on
September 1, 2011).3 Under the Act an organisation4 may
be convicted of corporate manslaughter if the organisation
owes a duty to take reasonable care for an individuals
safety and the way in which activities of the organisation
have been managed or organised, at least in part by senior
management, amounts to a gross breach of that duty and
causes the individuals death. The focus of the Act is on
organisational liability and it does not permit piercing of

the corporate veil, even where directors are clearly

responsible for the corporate policies and practices that
significantly contributed to the death of an individual.
Prior to the enactment of the CMCHA, in
circumstances where an individual was killed as a result
of corporate negligence, the courts and prosecuting
authorities had to rely on the common law offence of
involuntary manslaughter. However, problems have
traditionally arisen in imposing criminal liability on an
artificial legal body: a corporation may be vicariously
liable for the negligent acts and omissions of an employee
during the course of his employment5 but the courts have
ruled that the principle of vicarious liability does not
extend to manslaughter. Instead, the courts have drawn
upon the identification principle,6 which operates on
the basis that a body corporate is imputed with the
physical being and will of its directing mind.7 In relation
to the offence of involuntary manslaughter a corporations
guilt could only be established if it was possible to link
the grossly negligent act of an employee through a chain
of command, to the controlling or directing mind.8
The difficulty with such an approach was that an
organisation could only be convicted if a person in the
organisation, who is sufficiently senior to represent the
directing mind of the organisation, was proved to have
the requisite knowledge and fault. However, the
complexity of multi-layered structures within a
corporation (other than in small private companies) has
traditionally proved an obstacle to establishing the
necessary link between a culpable employee and the
directing mind. The few companies convicted of
manslaughter prior to the CMCHA were small companies
where it was easier to identify a culpable individual within
the organisation.9
Similar obstacles have faced the prosecuting authorities
with regard to the police force. Deaths in police custody10
are comparatively infrequentthere were 21 deaths in
police custody in 2011.11 When they do occur, it seems
that even where it is found that there has been the most
serious neglect of duty12 there is rarely a successful
prosecution of individual police officers,13 and criminal

The offence is called corporate manslaughter in England, Wales and North Ireland and corporate homicide in Scotland.
The Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No.1) Order 2008 (SI 2008/401 (C. 15)).
The Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No.3) Order 2011 (SI 2011/1867 (C. 69)). Implementation of the clause covering custody
deaths was delayed in order to give police forces and prisons time to inspect their custody facilities and make sure they were up to standard.
4
CMCHA 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.
5
Coppen v Moore (No.2) [1898] 2 Q.B. 306 QBD.
6
R. v HM Coroner for East Kent Ex p. Spooner (1989) 88 Cr. App. R. 10 QBD.
7
This rule is criticised by C. Wells, Culture, Risk and Criminal Liability (August 1993) Crim. Law. 551, 558561 and 563.
8
A. Pinto and M. Evans, Corporate Criminal Liability (London: Sweet & Maxwell, 2008), p.219.
9
A 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. In
that 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 at
the centre. Evidence established that the company routinely employed unqualified staff and did not train them, and that the supervision of the canoeing trip was grossly
inadequate. 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.
10
According to the National Policing Improvement Agency (NPIA), there are four categories which define death in custody or following contact with the police: (1) fatal
road traffic accidents involving the police; (2) fatal shooting incidents involving the police; (3) deaths in or following police custody; and (4) deaths during or following
other 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 concerned
primarily 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 (Stationery
Office 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 manslaughter
of 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 not
guilty to the charge [and his trial was due to be heard in October 2012].
2
3

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liability of police forces for management failure which

may be in part to blame for the loss of life have never
been subject to criminal prosecution.14 Out of the 333
cases of recorded deaths in or following police custody
between 1999 and 2009, prosecutions were recommended
by the IPCC against 13 officers, including 14 charges for
manslaughter, none of which resulted in a conviction.15
However, the inclusion in the CMCHA 200716 of the
police as an organisation that falls within the remit of the
Act potentially heralds a significant development.

Context
Criminal liability in England and Wales typically requires
the prosecution to prove that the defendant committed
the prohibited conduct (the actus reus) while in a specified
state 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 for
manslaughter they will need to prove either that the
defendant committed the unlawful killing of the victim
by a positive act (unlawful act manslaughter) or through
a failure to act where the victim is owed a duty of care
by the perpetrator (gross negligence manslaughter). The
culpability element in the latter is the requirement for the
negligence to be gross.
In R. v Bateman, where a doctors patient had died
during labour, Lord Hewart C.J. defined gross negligence
manslaughter in these terms:
[I]n order to establish criminal liability the facts
must be such that, in the opinion of the jury, the
negligence of the accused went beyond a mere
matter of compensation between subjects and
showed such disregard for the life and safety of
others as to amount to a crime against the state and
conduct deserving of punishment.17
However, problems have arisen in imposing criminal
liability on an artificial legal construct such as a company.
In Spooner, according to Bingham L.J., in order for a
company to be criminally liable for manslaughter

[i]t is required that the mens rea and actus reus of

manslaughter should be established not against those
who acted for or in the name of the company but
against those who were to be identified as the
embodiment of the company itself.18
This theorythe identification or directing mind
theoryformed the basis of the common law offence of
corporate manslaughter. The effect of this doctrine was
that while individuals in a corporation could face charges
of gross negligence manslaughter,19 a corporation would
only 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 the
organisation who is sufficiently senior to represent the
directing mind of the organisation is proved to have
the requisite knowledge and fault. However, the
complexity of multi-layered structures within a
corporation (other than in small private companies) has
traditionally proved an obstacle to establishing the
necessary link between a culpable employee and the
directing mind. By way of illustration, the trial of P&O
Ferries for corporate manslaughter following the capsize
of the Herald of Free Enterprise in Zeebrugge harbour
and the subsequent deaths of 193 passengers and crew20
collapsed when Turner J. directed the jury to acquit the
company of manslaughter, largely because it was not
possible to identify any senior individual as the
controlling mind of the company and individually liable
for manslaughter.21 The few companies that have been
successfully convicted of manslaughter are small
companies where it is easier to identify a culpable
individual within the organisation.22

The Corporate Manslaughter and

Corporate Homicide Act 2007
There has been much criticism of failed prosecutions of
work related fatalities or of the failure to bring
prosecutions because of anticipated problems of proof,23
and Parliament attempted to address these deficiencies
by the enactment of the CMCHA 2007. The Act only
applies to corporations and some unincorporated bodies,
including trade unions, partnerships, and employers
organisations, which can no longer be convicted of the

14

A. Sanders, R. Young and A. Burton, Criminal Justice, 4th edn (Oxford: Oxford University Press, 2010), pp.223228; G. Smith, A Most Enduring Problem: Police
Complaints 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].
15
M. Hannan et al., Deaths in or following police custody: An examination of the cases 1998/92008/9 (IPCC, 2010), pp.8182.
16
The 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 Corporate
Homicide Act 2007 (Commencement No.1) Order 2008 (SI 2008/401 (C. 15). For legislative comment see D. Ormerod and R. Taylor, The Corporate Manslaughter and
Corporate Homicide Act 2007 [2008] Crim. Law. 589.
17
R. v Bateman (1927) 19 Cr. App. R. 8 at 1112. In R. v Adomako [1994] 3 All E.R. 79 HL, the leading case in this area of law, an anaesthetist failed to notice the
disconnection of the tube from a ventilator supplying oxygen. The House of Lords held that a defendant was properly convicted of involuntary manslaughter by breach of
duty 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 the
breach 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.
19
A charge that still exists today.
20
R. v P&O Ferries (Dover) Ltd (1991) 93 Cr. App. R. 72 Central Criminal Court.
21
C.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, Corporate
Homicide and Legal Chaos, (1999) 149 New Law Journal 1031; S. Tombs and D. Whyte, A deadly consensus: worker safety and regulatory degradation under New
Labour (2010) 50(1) British Journal of Criminology 46.

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241
common law offence of gross negligence manslaughter
(s.20) but it does not apply to individuals, and an
individual cannot be guilty of aiding, abetting, counselling
or procuring the offence.
The Act provides that a relevant organisation24 may be
convicted of corporate manslaughter if the manner in
which its activities are managed or organised causes a
death and amounts to a gross breach of a duty to take
reasonable care for a persons safety; a substantial part
of the breach must have been attributable to senior
management failure in the organisation.25 Reflecting the
common law offence of gross negligence manslaughter,
the offence only applies where an organisation owes a
duty of care to a victim arising out of certain specific
functions or activities performed by the organisation.26
The CMCHA 2007 is designed to complement the
current law under which individuals can be prosecuted
for gross negligence manslaughter by introducing a
manslaughter offence specifically aimed at organisations
and where corporate liability for homicide is not subject
to the fiction of identification. Although individuals such
as directors and employees cannot be prosecuted under
the Act, if they have been grossly negligent they may still
face a personal manslaughter charge under the common
law.
CMCHA s.1(1) provides:

play significant roles in either the making of

decisions about how the whole or a substantial part
of its activities are to be managed or organised, or
the actual managing or organising of the whole or
a substantial part of those activities.
The meaning of significant [role] is undefined, but
clearly in the case of a company there is a requirement
for a level of authority deriving directly or indirectly, via
a delegation of authority, from the directing mind.28
The CMCHA abolishes the common law identification
principle, in the second part of the definition, by removing
the requirement that liability must be determined
exclusively by reference to the directing mind of a
company.29 A company may therefore be liable for
corporate manslaughter if senior management organises
or manages an actual activity which results in a fatality
without the need to prove that the senior manager was
obeying policies or instructions laid down by the board
of directors. However, where companies have complex
management structures the establishment of senior
management failure may prove difficult.
The Governments Regulatory Impact Assessment
projected that the Act will not generate more than 10 to
13 successful prosecutions per annum, 30 despite the fact
there are on average 19631 workers per year fatally injured
in the United Kingdom.

An organisation is guilty of an offence if the

way in which its activities are managed or organised

(a)
causes a persons death, and
(b)
amounts to a gross breach of a relevant
duty of care owed by the organisation to
the deceased.27
A gross breach is one that falls far below the standard
that can reasonably be expected of the organisation in the
circumstances. The offence is only committed where the
way in which the organisations activities are managed
or organised by its senior management is a substantial
element in the gross breach of a duty to take reasonable
care (s.1(3)).
The offence requires the failure of senior management,
which is defined in s.1(4) as the persons who

Figure 1 Health and Safety Executive Statistics on

fatal injuries in the workplace32
It is pertinent to note that since coming into force on
April 6, 2008, there have been 104 prosecutions as a result
of fatalities at work33 (the majority for breaches under the
Health and Safety at Work etc. Act 1974), but only three

24

CMCHA 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.
25
CMCHA 2007 s.1.
26
CMCHA 2007 s.2.
27
Emphasis 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 Manslaughter
and Corporate Homicide Act 2007 (2010) 74 Journal of Criminal Law 358.
30
Home Office, Corporate Manslaughter and Corporate Homicide: A Regulatory Impact Assessment of the Governments Bill (London: Home Office, 2006).
31
Average 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 as

the result of guilty pleas.35 On February 15, 2011,
Cotswold Geotechnical Holdings (CGH) became the
first company in the United Kingdom to be convicted of
the offence of corporate manslaughter under the CMCHA
2007.36 In convicting the company, its system of work
was berated as being wholly and unnecessarily
dangerous and a fine of 385,000 imposed on the
company, which, being in a parlous state would be
permitted to pay the sum over a period of 10 years. The
companys application for leave to appeal against the fine
and conviction was rejected by the Court of Appeal.37
A second companyJMW Farms Ltdpleaded guilty
in May 2012 to breaching the CMCHA 2007 and on July
3, 2012 Lion Steel Ltd became the third company in the
United Kingdom to be convicted of the statutory offence
of corporate manslaughter after an employee died as a
result of falling through a roof at one of the firms sites.38
Interestingly, the company is listed as a medium-sized
company and it was hoped that the case would provide
clarification of what is meant by senior management
and a substantial part of a companys activities under
the Act.39 However, no such insights have been provided
since, although the company was originally charged with
corporate manslaughter, shortly before the trial the judge
severed the corporate manslaughter charge and the trial
proceeded against the company on health and safety
charges, and against three individual directors on charges
of gross negligence manslaughter and health and safety
charges. When the cases of gross negligence manslaughter
were dismissed against two of the directors a decision
was made by the company to plead guilty to corporate
manslaughter and all remaining charges against the
directors were dropped.40

On conviction for corporate manslaughter a relevant

organisation is subject to a criminal sanction by way of
an unlimited fine.41 An important point to note is that the
cost of fines cannot be met by insurance. Such risks are
deemed to be uninsurable at law. For public policy
reasons any insurance contract purporting to insure against
the risk of criminal fines would be void and
unenforceable. It is recognised that if a fine imposed on
the company is very substantial, the result may be the
demise of the organisation.
However, monetary sanctions are not the only remedies
available: the use of Remedial Orders and Publicity
Orders are specifically provided for. Under s.9, an
organisation can be ordered to take steps to remedy the
management failure that led to the death.42 Remedial
Orders43 are available in cases where corporate failings
have not been remedied by the time of the trial, and where
such failings are sufficiently specific to be enforceable.44
Failure to comply with the order is punishable on
conviction by an unlimited fine. In addition, a court has
the power to make a Publicity Order45a naming and
shaming of convicted corporationsrequiring the
organisation to publicise its conviction, details of the
particulars of the offence, the amount of any fine and the
terms of any remedial order that has been imposed.
Failure to comply with the order is also punishable on
conviction by an unlimited fine. Such Orders are only
available in cases of corporate manslaughter and aim to
have both deterrent and punitive effect.46

Deaths in police custody

Whatever view one takes regarding the impact of the
CMCHA on the criminal liability of corporations for
deaths in the workplace, it is certainly arguable that the
change which the Act heralds for organisations which are
not corporations is more fundamental.47 Although the Act

34

The 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 guilty
to breaching the CMCHA 2007 and was fined 187,500 at Belfasts 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 [Both
accessed March 28, 2013].
35
Originally, Cotswold Geotechnical (Holdings) Ltd was charged under CMCHA and the sole director, Peter Eaton, was charged with gross negligence manslaughter, with
both 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].
37
Cotswold Geotechnical Holdings [2011] EWCA Crim 1137; [2012] 1 Cr. App. R. (S.) 26. See also A. Dobson, (2012) Shifting sands: multiple counts in prosecutions
for corporate manslaughter [2012] Crim. Law. 200.
38
The trial commenced in June 2012. See http://www.bbc.co.uk/news/uk-england-manchester-13993270 [Accessed March 28, 2013].
39
The 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].
41
CMCHA s.1(7). In accordance with the guidelines published in February 2010 by the Sentencing Guidelines Council (SGC) the appropriate fine following a conviction
for 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.
42
The 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 court
to 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 companys policies, systems or
practices of which the relevant breach appears to the court to be an indication.
43
Remedial 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.
45
CMCHA 2007 s.10.
46
SGC, Corporate Manslaughter and Health and Safety offences causing death (2010), para.31.
47
M. Tyler, Corporate killing: letter of the law (2007) 10 Tolleys Health and Safety at Work 16.

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provides various exemptions for the police and other law
enforcement bodies,48 significantly since September 1,
201149 police forces have been subject to the CMCHA in
respect of deaths in custody.50 For the purposes of
attracting liability under the Act, a police force51 is
deemed a body corporate, a relevant organisation.52 The
police force itself will now be liable to prosecution for
corporate manslaughter.53 In addition, custody providers,
whether public or private (contracted service providers)
may be criminally liable for deaths of individuals being
transported to and from immigration detention
centres54such as the death of Jimmy Mubenga,55 an
Angolan deportee who died after being restrained by G4S
guards56 on a British Airways plane scheduled to fly to
Angola. These bodies will, for the first time, face
prosecution for corporate manslaughter.57
According to the Independent Police Complaints
Commissions report Deaths in or following Police
Custody,58 between 1999 and 2009, 333 people died in
or following police custody. Of these, 87 had been
restrained, most commonly being physically held down
by officers and in 16 of those cases, restraint was linked
directly to the death, and four were classed as positional
asphyxia.59 Although the number of deaths in custody
is relatively small compared with the number of arrests,60
it is of concern that most suspects were arrested for
relatively minor offences which were often linked to
intoxication such as being drunk and incapable/disorderly,
public order offences and driving offences.

Figure 2 Deaths in police custody 2000201161

The latest statistics relating to deaths in or following
police custody show that although the number of deaths
had been decreasing since 2004/05, in the period
20092011 there was in fact an increase in these deaths.62
In addition to these figures, the Ministry of Justice has
reported that in 2011 there were 58 self-inflicted deaths
among prisoners in England and Wales.63
At common law, civil liability may be imposed on
prison and police authorities when a detainee dies64; this
duty of care extends not only to actions by state officials
but also to actions of other inmates and self-harm.65
Similarly, negligent conduct by a police force resulting
in the death of an individual is vulnerable to a prosecution
under the HSWA 1974, although such prosecutions have
been rare, and convictions rarer66: to date only one such
successful prosecution has been recorded against a police
force, namely, the de Menezes case.67
In more recent years, the position has been strengthened
by the duty of all public authorities to safeguard the
prisoners right to life under art.268 of the European
Convention on Human Rights (ECHR), ranked as the

48

CMCHA 2007 s.5.

The Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No.3) Order 2011 (SI 2011/1867 (C. 69)).
CMCHA 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, immigration
suites and Ministry of Defence institutions. Implementation of the clause covering custody deaths was delayed in order to give police forces and prisons time to inspect
their custody facilities and make sure they were up to standard.
51
A 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) the Ministry of Defence Police (CMCHA
s.13).
52
CMCHA 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 body
corporate.
53
This 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 (HSWA
s.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).
55
On October 12, 2010 Mr Mubenga lost consciousness while the British Airways flight was on the runway at Heathrow. He was taken to hospital, where he was pronounced
dead; see http://www.guardian.co.uk/uk/2010/oct/14/security-guards-accused-jimmy-mubenga-death?INTCMP=ILCNETTXT3487 [Accessed March 28, 2013].
56
The 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.
57
Government bodies are nevertheless afforded protection by matters of public policy and by certain actions in the exercise of an exclusively public function not being
deemed relevant duties of care.
58
Hannan et al., Deaths in or following police custody (IPCC, 2010).
59
Hannan et al., Deaths in or following police custody (IPCC, 2010), pp.910.
60
Over 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].
62
K. 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].
64
Reeves v Commissioner for the Police of the Metropolis [2000] A.C. 360 HL.
65
Kirkham 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 to
pass on information relating to his suicidal tendencies. See also Reeves [2000] A.C. 360.
66
A 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 more
than 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.
49
50

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most fundamental provision in the Convention69 and

according to which the police, prison service and other
public authorities70 have a positive duty to ensure that
they take reasonable measures to protect the lives of
persons held in detention.71 The European Court of Human
Rights has, however, taken a cautious approach towards
a states obligations under art.2 where a prisoner takes
his own life: the duty of care is only owed where the
authorities knew or should have known of the individuals
suicide risk and any duty is limited to taking reasonable
steps to avoid a prisoners death.72
In spite of the art.2 route, there were until recently few
options available to aggrieved parties where death has
occurred in police custody and critics have long asserted
that criminal liability for institutional failures is lacking
both with regard to fatalities due to corporate negligence,
and for deaths attributable to the negligent act or omission
of a police force.73 Illustrative of the deficiencies in the
system is the fact that of the 12 unlawful killing verdicts
returned by juries at inquests into deaths in custody
between 1990 and 2011, none has led to a successful
prosecution.74
The implementation of the death in custody provisions
in the Corporate Manslaughter and Corporate Homicide
Act has been broadly welcomed as a move toward greater
accountability of the police force and other custody
providers.75 It is clear that the offence is aimed at systemic
failures to manage safety in organisations; the
management failure need not be the sole cause of death
but the conduct which causes the breach must fall far
below what could reasonably be expected. Although the
CMCHA lacks a specific test in the assessment of what
is reasonable, it seems likely that it will
be measured by standards ordinarily expected of a
reasonable diligent police force, competent in the
compliance and enforcement of health and safety
matters.76
As John Coppen, the Police Federation representative for
police sergeants, has intimated,77 if a detainee were to
hang themselves in a police cell, not only would the
custody sergeant be subject to questioning, but there
would also be scrutiny of the design of the cell; whether

there were, for example, any ligature points that should

have been removed. Conversely, a corporation will not
be liable under the Act where a death occurs but there are
reasonable safeguards in place relating to the management
of the activity.
While the term management failure is not used, the
Act requires the way in which an organisations activities
are managed or organised by its senior management to
be a substantial element in the breach of the duty of care.
Senior management is defined in s.1(4) CMCHA as
people who play a significant role in making decisions
about how the whole or a substantial part of the
organisations activities are managed, or in the actual
managing or organising of the whole or a substantial part
of the activities. The test of senior management is said
to be wider than the controlling mind which was
required at common law,78 but it is clearly indicative of
a certain level of authority emanating directly or
indirectly, via a delegation of authority from the
organisations controlling mind.79
The interpretation of the term senior management in
the context of a police force raises some interesting
questions: it will undoubtedly include the chief constable,
and the deputy or assistant chief constable. In addition,
a police superintendent responsible for the management
of a specific police station would appear to fall within its
remit. What is less clear is how far the definition will
gowhether for example for the purposes of the CMCHA
it 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 Justice
McCowan, for example, in Vince v Chief Constable of
Dorset,80 observed that PACE placed heavy and
important duties upon a custody officer, and the Police
Federation of England and Wales.
Sergeants Central Committee refers to police custody
sergeants as The Linchpin of the Criminal Justice
System.81 Significantly, in its most recent Guidance on
the Safer Detention and Handling of Persons in Police
Custody82 for the Association of Chief Police Officers
(ACPO), the National Policing Improvement Agency

69

McCann 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].
70
Human 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 public
authority 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 private
companies.
71
Osman v United Kingdom (1998) 29 E.H.H.R. 245 ECtHR.
72
Orange v Chief Constable of West Yorkshire Police [2006] 1 W.L.R. 1155 CA (Civ Div).
73
Sanders, Young and Burton, Criminal Justice (2010), pp.191194; G. Smith, A Most Enduring Problem: Police Complaints 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].
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].
76
Griffin 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].
79
Griffin, Corporate Manslaughter (2007) 71 Journal of Criminal Law 151.
80
Vince v Chief Constable of Dorset [1993] 1 W.L.R. 415 CA (Civ Div).
81
Police 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].
82
NPIA, 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].

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245
(NPIA) states that Responsibility for managing the
first actions following a successful intervention83 lies with
the 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 also
allows an officer who is not a sergeant to perform this
role. Moreover, since the Court of Appeal in Vince v Chief
Constable of Dorset85 determined that a chief constable
is not under a statutory duty under PACE s.36 to appoint
a sufficient number of custody officers to ensure that at
each designated police station there will ordinarily be
available a custody officer, and further, that s.36(4) was
not to be read as applying only in the event of some
operational
emergency
or
other
unforeseen
circumstances, the likelihood of officers without
adequate training performing this role is very real.
A custody officer is responsible inter alia for a
detainees health and safety, including identifying any
special needs, not only with regard to physical and mental
disabilities, but also whether the detainee presents any
risk of self-harm. Part of their role involves monitoring
and observing detainees to minimise or negate any such
risk in accordance with the procedures contained in
PACE. Given the significance of the role, therefore, it is
certainly arguable therefore that the custody officer would
fall within the senior management provisions of the
CMCHA.
Further support for the view that a custody officer may
fall within the remit of the Act may be found through
application of the aggregation theory. This holds that
corporate criminal liability does not have to be contingent
upon one individual employees satisfying the relevant
criteria for liability.86 There is support in the United States
for this approach, known as the collective knowledge
doctrine,87 according to which companies are vicariously
liable for the behaviour of their employees, whatever their
status in the organisation, and by virtue of which, the
conduct and fault elements of the employees can be
aggregated so as to render the company liable. In the
United Kingdom, cases on corporate manslaughter have
traditionally rejected this approach88; however, some have
expressed the view that the 2007 Act would now appear
to embrace the aggregation concept in limited form89 by
the linkage in s.1(4) of senior management to persons
who play significant roles in the making or execution
of decisions within the company.

An alternative view is that the custody officer would

in fact fall outside the remit of senior management, but
that liability could nevertheless be imposed on the police
force because, for example, of failure of the senior officers
to ensure that the custody officer (or others responsible
for detainees) complied with the guidance for the handling
of persons in police custody,90 or because of failure of
senior management to provide adequate training for
officers undertaking a custody role. As Ormerod and
Taylor91 have argued, a senior management decision to
give overall responsibility for health and safety to a person
at an inappropriate low level of authority or experience
could be damning evidence of the way in which the
organisations activities are managed or organised by its
senior management; an argument that finds particular
resonance here.

Conclusion
There has been much criticism of failed prosecutions of
work related fatalities92 and whether there is a real change
in practical terms will depend to a large degree on the
extent to which the prosecuting authorities are willing to
make use of the new offences available to them.
Indications to date are less than promising: in spite of
numerous cases where death has occurred in the
workplace since the inception of the CMCHA,93 the Act
has resulted in one trial with a successful convictionof
a small company, Geotechnical Holdings,94 which would
most probably have fallen foul of pre-2007 provisions in
any eventand two guilty pleas. An overly cautious
approach to prosecuting under the Act will by definition
curtail the impact of the provisions.
It is certainly arguable that police accountability has
been advanced by the CMCHA insofar as the principle
and practice of invoking police accountability is now
enshrined in statute; transparency and public confidence
in the policing system will be better served. In addition,
the Act may have a deterrent effect insofar as it acts as a
reminder to organisations to provide better training in
safety management, and thereby prevent future deaths in
custody and the workplace.
However, it is the language of the Act itself that will
ultimately prove to be pivotal: should a complex case
make it as far as the courts, much will rest on the
interpretation by the courts of the term senior

83

NPIA, 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 to
its 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 to
perform them.
85
Vince [1993] 1 W.L.R. 415.
86
Meridian 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).
87
US 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).
88
C. Wells, Corporations and Criminal Responsibility, 2nd edn (Oxford: Oxford University Press, 2001), pp.154160.
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.
91
Ormerod and Taylor, The Corporate Manslaughter and Corporate Homicide Act 2007, [2008] Crim. Law. 589.
92
Almond, Regulation Crisis (2007) 29 Law & Policy 285; Slapper, Corporate Homicide and Legal Chaos (1999) 149 New Law Journal 1031; Tombs and Whyte, A
deadly consensus (2010) 50(1) British Journal of Criminology 46.
93
Between 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].
94
R. v Cotswold Geotechnical Holdings [2011] EWCA Crim 1137; [2012] 1 Cr. App. R. (S.) 26. In convicting the company, its system of work was berated as being wholly
and unnecessarily dangerous and a fine of 385,000 was imposed.

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246

International Company and Commercial Law Review

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 liability
under the Act would extend to relatively low ranking
police officers owing to the combined effect of CMCHA
2007 and PACE 1984; another, that the wrongful acts of
these employees couldindeed, shouldbe factored into

the assessment of whether there has been a failure of

senior management. Nonetheless, the challenge of
securing the conviction of an organisation with complex
multi-layered structures remainsand it is one that will
have to be overcome if the CMCHA 2007 is to advance
accountability in real terms.

[2013] I.C.C.L.R., Issue 6 2013 Thomson Reuters (Professional) UK Limited and Contributors