On Thursday 1 September 2011, Section 2 (1) (d) of the Corporate Manslaughter and Corporate Homicide Act 2007 comes into effect, duly bringing into force a new corporate manslaughter liability for all those entities responsible for detaining people in custody (police service/prison service/mental health secure units/deportation units/Ministry of Defence (MoD)-run detention facilities, etc).
When enacting the 2007 Act back in 2008, the Government agreed to give such service providers three years in which to gear themselves up for this potential liability, not least to ensure sufficient training and practices were in place in good time.
The change in the law now raises the possibility of state and privately run organisations with responsibility for custody services being prosecuted where individuals have died as the result of proven neglect on the part of the organisation concerned.
Examples of where the offence might apply to custody providers
The following examples are perhaps slightly more questionable, but also raise interesting issues:
Criminal Health and Safety law expert’s view
Jonathan Grimes, criminal Health and Safety law expert at Kingsley Napley, supports the inclusion of these entities as being bound by responsibilities under the Act given the significant numbers of individuals who have died in police and prison detention, and where issues of negligence have arisen.
However, Grimes notes that in relation to MoD-run facilities the law doesn’t extend to entities under British control overseas because the jurisdiction of the Act is limited to England, Scotland, Wales and Northern Ireland.
The effect of this is that, should a prisoner die in British Army detention overseas (for example in Afghanistan) as the result of proven negligence, no prosecution of the MoD could follow under the Act as it stands.
There will be many that view this as an unfortunate gap in the law, not least given the emergence of certain high profile cases where detainees have died while in British Army detention.
Grimes told SMT Online: “Existing law – the common law offence of Gross Negligence Manslaughter – already allows for the criminal prosecution of police officers, prison officers or others responsible for detaining members of the public following a death in custody where negligence on the part of these individuals can be proven to have contributed to the death in question.”
He continued: “Rather, the Corporate Manslaughter and Corporate Homicide Act is about holding an organisation to account where its proven negligence causes a death. As such, the change is to be welcomed. It may well focus custody-providing organisations on ways in which they can better ensure the safety of those they are responsible for detaining. In turn, that might help to reduce certain preventable deaths.”
The legal expert went on to state: “It’s an odd feature of the Act that its jurisdiction is limited to England, Scotland, Wales and Northern Ireland. By contrast, witness the common law offence of Gross Negligence Manslaughter which is one of ‘universal jurisdiction’, meaning that UK nationals can be convicted in relation to a death which occurs overseas.”
Grimes explained: “While this is a feature of the Act as a whole – for example the British manufacturer of a defective child seat causing a British child’s death in France could not be prosecuted in the UK under this Act – it may create a particular sense of injustice if a foreign national dies as the result of British Army neglect while in captivity overseas.”
Background to the newly enforceable clauses
The newly enforceable clauses incorporate two changes, including bringing into force Section 2(1)(d) of the Act, which extends the Duty of Care relevant to the Act to those responsible for detaining individuals in custody (including within the identified custody providers, the UK Border Agency and the MoD, insofar as they have responsibility for detained persons)
Previously, individuals could be prosecuted for gross negligence following a death in custody, but the company or public body could not.
The Corporate Manslaughter and Corporate Homicide Act 2007 creates an offence where, in particular circumstances, an organisation owes a duty to take reasonable care for a person’s safety and the way in which activities of the organisation have been managed or organised amounts to a gross breach of that duty and causes the person’s death.
How the activities were managed or organised by senior management must be a substantial element of the gross breach. Convicted organisations – which can include Government departments – could receive an unlimited fine.
One company (Cotswold Geotechnical Holdings Ltd) has so far been convicted of the offence following the death of a geologist, 27-year-old Alexander Wright, who was killed while collecting soil samples in an un-shored trial pit.
Those of you familiar with this episode will know that the company was fined GB pound 385,000 despite having very limited assets (and having traded at a loss). Cotswold Geotechnical Holdings Ltd appealed unsuccessfully against the level of this fine.
