The tragic fire at Grenfell Tower on 14 June 2017, resulting in the deaths of seventy-two innocent residents, arguably marks the most significant catastrophe in recent decades to bring to light the issues of corporate criminal liability and corporate manslaughter<\/a>.[1]<\/a> In the last few decades, other national disasters involving corporations, most notably, the Herald of Free Enterprise ferry calamity in 1987 and the Southall rail disaster in 1997 amongst others, have prompted the government to take action in response to the frustration of the public and the media at the perceived injustice of corporations and large organisations eluding convictions for deaths caused by their gross failings.[2]<\/a> Prior to the introduction of the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA), in order for a company to be found guilty of corporate manslaughter, under common law, a director or senior manager of the said company had to be found guilty of gross negligence manslaughter.[3]<\/a> This dependence upon the identification principle, an individual-centric model requiring the personal culpability through the identification of the \u201ccontrolling mind\u201d of a company was problematic when attempting to prosecute large corporations with complex management structures. [4]<\/a><\/p>\n The government\u2019s response to the problems manifested itself in the form of a Law Commission report in 1996 and subsequently the Corporate Manslaughter and Corporate Homicide Act in 2007.[5]<\/a> Chapter One provides an evaluation of the background of the law in relation to corporate manslaughter through the examination of two of the most notable cases that contributed to a cultural shift in the perception of corporate criminal liability and accelerated the government\u2019s re-evaluation of the legal position of corporate manslaughter, namely, the Herald Free Enterprise disaster<\/a> and the Great Western Railway train crash.[8]<\/a> The failed prosecution of both corporations in these two cases in particular were key in bringing to the fore the law\u2019s inadequacy to prosecute large companies.[9]<\/a> This has been primarily deemed to be due to the nature of the identification principle which, firstly required the identification of a distinguishable individual personally culpable for the gross breach and secondly, for this person to be the controlling mind of the said breach.[10]<\/a> <\/p>\n Chapter Two critically analyses the Act, in particular section 1(1) which discusses the<\/em> <\/em>way<\/em> <\/em>in which an organisation<\/em>\u2019<\/em>s<\/em> <\/em>activities<\/em> <\/em>are<\/em> <\/em>managed<\/em> <\/em>or<\/em> <\/em>organised<\/em>, section 1(3) which requires the operation of such activities to be carried out by the senior<\/em> <\/em>management<\/em> <\/em>and for this to constitute a substantial<\/em> <\/em>element<\/em> <\/em>in the breach and section The unsuccessful prosecutions of the companies involved in the disasters of the Herald Free Enterprise <\/em>and the Southall train crash <\/em>are perceived as key demonstrators of the inadequacy of the preceding provisions when previously attempting to prosecute corporations, particularly large companies, for corporate manslaughter.[14]<\/a> Significant public condemnation and notable media attention followed the capsize of the Herald of Free Enterprise ferry in March 1987 off the Zeebrugge harbour after it had left its bow doors open, resulting in the deaths of 192 people.[15]<\/a> A decade later, the Southall rail crash prompted further censure from the public and ran parallel to the increasingly prevalent consensus amongst legal and political commentators that the then legal provisions in place for the prosecution of the gross negligence of large corporations were patently inadequate and that a radical reform was required.[16]<\/a><\/p>\n The charges brought against P&O ferries in 1991 heralded the first time that a judge ruled that the law recognised manslaughter as a charge that could be brought against a corporation.[17]<\/a> A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He<\/em> <\/em>is<\/em> <\/em>acting<\/em> <\/em>as<\/em> <\/em>the<\/em> <\/em>company<\/em> <\/em>and<\/em> <\/em>his<\/em> <\/em>mind<\/em> <\/em>which<\/em> <\/em>directs<\/em> <\/em>his<\/em> <\/em>acts<\/em> <\/em>is<\/em> <\/em>the<\/em> <\/em>mind<\/em> <\/em>of<\/em> <\/em>the<\/em> <\/em>company<\/em>. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment<\/em> <\/em>of<\/em> <\/em>the<\/em> <\/em>company<\/em> or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his<\/em> <\/em>mind<\/em> <\/em>is<\/em> <\/em>the<\/em> <\/em>mind<\/em> <\/em>of<\/em> <\/em>the<\/em> <\/em>company<\/em>. This anthropomorphic view of a company\u2019s management structure similarly contributed to the failed prosecution in the Southall rail crash disaster where the identification doctrine established in Tesco v Nattrass <\/em>still applied.[22]<\/a> The fatal collision which occurred on 19 September 1997 on the 10:32 GWT-operated train from Swansea to Paddington resulted in the deaths of seven people, leaving a further 139 people with serious injuries.[23]<\/a> Although the company was eventually fined \u00a31.5 million, as with the P&O disaster, the prosecution for manslaughter against the GWT was unsuccessful. In the case of the Southall rail crash, the Attorney-General directed the case on a point of law to the Court of Appeal, marking the first time that an appeal court examined the law on corporate manslaughter and following the determination of which the Government accepted the recommendation of the Law Commission of the establishment of a corporate killing offence. [24]<\/a> <\/p>\n Before the CMCHA 2007, the perceived primary difficulty with the application of the identification doctrine on corporations lay with the complications presented by the necessary establishment of the causal link between the grossly negligent act and the \u201ccontrolling mind\u201d responsible for it.[25]<\/a> The difficulties brought to light in prosecuting large corporations in the Herald<\/em> <\/em>Free<\/em> <\/em>Enterprise<\/em> <\/em>disaster and the Southall rail crash cases prompted the Law Commission\u2019s Report (CM 237?) in 1996 entitled \u201cLegislating the Criminal Code: Involuntary Manslaughter\u201d and comprised proposals for a new offence of corporate killing directed exclusively at the prosecution of corporations to supplement the existing provisions directed at individuals.[31]<\/a> The Government\u2019s long-awaited substantive response to the 1996 Law Commission report materialised seven years later with the Corporate Manslaughter Bill 2005 which set out the proposals for a specific offence of corporate manslaughter.[34]<\/a> The rationale behind the 2005 Bill was also to finally address the problems presented [by the application of the] \u201ccontrolling mind\u201d and personal culpability requirements of the identification doctrine on corporations. However, as noted by L.Watkins, the supposed reform of the elements of the identification doctrine where the requirement of a \u201cdirecting mind\u201d of the decision is replaced by the management of the activities of \u201csenior management\u201d, is much less an elimination of the identification principle and more a re-packaging of the same doctrine.[35]<\/a> <\/p>\n Chapter Two will argue that despite the recognition of the need for clarification in a 2005-06 Joint Report, when the final draft was published and the Act came into force in 2007, these sections remained unchanged. This lack of clarity and absence of direction in relation to senior management element is likely to cause difficulties when attempting to prosecute the type of sizeable entities involved in the Grenfell Tower refurbishment. Further, a comparable lack of guidance in respect of the Act\u2019s provisions directed towards public bodies, specifically in respect of duty of care and causation, will also pose challenges when applying the provisions to public authorities.Since the CMCHA came into force, the number of successful prosecutions for companies under the Act as of [April] 2018 stand at twenty-three.[36]<\/a> An analysis of the pertinent sections of the Act may elucidate some reasons for the low conviction rate. Indeed, academics, among them Richard A. Matthews,[37]<\/a> have commented on the deficiency of guidance and clarity on the provisions of the Act, with Gerard Forlin Forlin QC noting that \u201cwe are still a long way from knowing what many of the CMCHA 2007 main provisions actually mean\u201d.[38]<\/a> Indeed, even from the initial stages of the Act\u2019s formation, namely, the publication of the first draft Bill in 2005 (Draft Corporate Manslaughter Bill CM 6497) which prompted a joint committee of the Home Affairs and Work and Pensions Committees to produce a report – the First Joint Report from the Home Affairs and Work and Pensions Committees Session 2005-06 (HC540), which subsequently examined the provisions in the Act in detail and identified that parts of the Act which required further amendment and clarification, [39]<\/a> including the senior management element itself in section 1(3) and its definition in section 1(4).[40]<\/a> <\/p>\n S 1.(1) states that \u201cAn organisation to which this section applies is guilty of an offence if the way <\/em>in which its activities are managed or organised \u2014 (a) causes a person\u2019s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.\u201d[41]<\/a> S.1(1) of the Act removes the requirement of the identification of a sole accountable individual behind the decision-making, section 1. (3) nonetheless states that an organisation is guilty of the offence \u201conly if the way<\/em> in which its activities are managed or organised by its senior management<\/em> is a substantial breach referred to in subsection 1.\u201d[42]<\/a> In section 1(1), \u201cway\u201d is sufficiently broad to include any relevant decisions, acts and omissions both lawful and unlawful.[43]<\/a> The determination of whether the way in which an organisation\u2019s management of activities caused death is based on the general principles of causation in criminal law and is a fact for a jury to determine.[44]<\/a> As Jeremy Horder perceptively notes, the employment of \u201cway\u201d broadens the applicability to corporation by addressing the previous issue of aggregation as it permits the jury to consider the organisation\u2019s conduct in a holistic manner.[45]<\/a> <\/p>\n However, the subsequent requirement for the way<\/em> <\/em>of these activities to be managed or organised by \u201csenior management\u201d arguably restricts the possible wider applicability of the first part of the provision.[46]<\/a>
\nThe Act received Royal Assent on 26 July 2007 and came into force a year later in April 2008.[6]<\/a>
\nIt was therefore envisaged that the Act would facilitate the ascription of criminal liability to corporations and large organisations and thus lead to a notable increase in the number of particularly larger companies being successfully convicted under its provisions. More than ten years after the enactment of the Act, the Grenfell Tower disaster is likely to put the provisions of the Act to test in an unprecedented way and this process in turn will be key in evincing whether the Act can succeed in facilitating the successful conviction of large companies for corporate manslaughter. [7]<\/a><\/p>\n
\n1(4) which subsequently aims to explain the senior management element.[11]<\/a>
\nThis will be examined in order to demonstrate that the absence of a detailed explanation of these terms and the lack of guidance in respect of them generate uncertainty and render the application of these provisions to corporations and public bodies difficult.[12]<\/a>Chapter Three considers how the lack of clarity in these stipulations are likely to complicate the prosecution of the numerous
\nlarge companies and public bodies which were involved in the refurbishment of Grenfell Tower and the tragedy that caused
\nmultiple deaths.[13]<\/a> This paper concludes that the tragedy at Grenfell Tower and the divergent entities involved in the Tower\u2019s refurbishment form part of unprecedented circumstances which will put the Act\u2019s provisions to test. Concluding from the application of the statutory provisions on the case law to date, it would appear unlikely that the Act will be able to significantly facilitate the prosecution of large corporations and public entities for corporate manslaughter as it was intended to do. However, it is probable that should indictments against organisations involved in the Grenfell Tower refurbishment go to trial, these will hopefully provide much needed guidance in respect of the application of the Act\u2019s provisions
\nto large organsations.<\/p>\nCHAPTER ONE <\/h2>\n
\nHowever,
\ndespite
\nthis, the judge eventually directed acquittals, enabling the company to evade prosecution.[18]<\/a>
\nAs will be demonstrated, the acquittals were mainly due to the failure of the prosecution to establish the required \u201ccontrolling mind\u201d of the company\u2019s actions carried out by an identifiable individual who could constitute as the human embodiment of the company and therefore be held as wholly culpable for the company\u2019s gross negligence.[19]<\/a>
\nIndeed,
\nthe judge relied on the ruling in Tesco<\/em> <\/em>Supermarket<\/em> <\/em>Ltd<\/em> <\/em>v<\/em> <\/em>Nattrass<\/em> [1971?]<\/strong><\/em> to reach his decision to cease further proceedings against the company.[20]<\/a>
\nTesco<\/em> <\/em>v<\/em> <\/em>Nattrass<\/em> <\/em>developed the identification doctrine \u2013 at 170E, Lord Reid summarises the crux of the principle [italics are my emphasis]:\n<\/p>\n
\nIf it is a guilty mind then that guilt is the guilt of the company. [21]<\/a><\/p>\n
\nIndeed,
\nthe prosecution had to prove two things: firstly, that a single individual was responsible for the gross negligence manslaughter and secondly, that this person was the \u201ccontrolling mind\u201d of the company.[26]<\/a>Thus, if the evidence against the individual with the \u201ccontrolling mind\u201d is insufficient, the prosecution against the company would also be rendered non-existent.[27]<\/sup><\/a>The identification of a single \u201ccontrolling mind\u201d behind the key decision-making responsible for the gross negligent act is viable in a small corporation with a straightforward management structure
\nwhere the managers\/directors are easily identifiable.[28]<\/a>
\nHowever,
\nwith medium or large corporations where the management chain is ordinarily complex and tiered with multiple influences on key decisions from several individuals, the determination of a singular person largely responsible for the critical decision in question is seldom possible to ascertain.[29]<\/a>
\nAnother
\nnotably
\nmanifest
\ndifficulty
\nin assigning responsibility for a managerial or procedural failure is the fact that personnel frequently change within larger corporations thus making it particularly difficult to establish full responsibility when staff changes take place and especially so when such erroneous decisions are cumulative.[30]<\/a> It<\/em> <\/em>is<\/em>, <\/em>therefore<\/em>, <\/em>hardly<\/em> <\/em>surprising<\/em> <\/em>that<\/em> <\/em>before<\/em> <\/em>the<\/em> <\/em>cases<\/em> <\/em>Herald<\/em> <\/em>of<\/em> <\/em>Free<\/em> <\/em>Enterprise<\/em> <\/em>and<\/em> <\/em>the<\/em> <\/em>Southall<\/em> <\/em>rail<\/em> <\/em>crash<\/em> <\/em>and<\/em> <\/em>even<\/em> <\/em>during<\/em> <\/em>the<\/em> <\/em>period<\/em> <\/em>of<\/em> <\/em>time<\/em> <\/em>between<\/em> <\/em>the<\/em> <\/em>two<\/em> <\/em>cases<\/em>, <\/em>that<\/em> <\/em>only<\/em> <\/em>two<\/em> <\/em>companies<\/em> <\/em>were<\/em> <\/em>convicted<\/em> <\/em>of<\/em> <\/em>manslaughter<\/em> <\/em>and<\/em> <\/em>even<\/em> <\/em>more<\/em> <\/em>tellingly<\/em>, <\/em>that<\/em> <\/em>both<\/em> <\/em>were<\/em> <\/em>small<\/em> <\/em>companies<\/em> <\/em>with<\/em> <\/em>easily<\/em> <\/em>distinguishable<\/em> <\/em>management<\/em> <\/em>structures<\/em>. <\/em><\/p>\n
\nThe report also formed the foundations for a paper in 2000 entitled \u201cReforming the law on Involuntary Manslaughter: the Government\u2019s Proposals\u201d and a draft Corporate Manslaughter Bill (CM 6497) published in 2005.[32]<\/a>
\nThe
\n2000 consultation
\npaper further prompted the eventually unsuccessful Corporate Homicide Bill (No.114) in April 2000 with the aim of introducing a new offence of corporate killing.[33]<\/a><\/p>\nCHAPTER TWO<\/h2>\n
\nThe previous common law approach to corporate criminal liability was chiefly deficient due the narrowly restrictive nature of the identification doctrine. It was thus envisaged that the CMCHA would widen the attribution of criminal liability of corporations.[47]<\/a>
\nIndeed,
\nthe requirement in the CMCHA for the way the in which the organisation\u2019s activities are managed or organised to be carried out by its \u201c<\/em>senior<\/em>
\n<\/em>management<\/em>\u201d