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1. Tahmid Chowdhury (2020) – Law School
While Corporate Manslaughter and Corporate Homicide Act 2007 “affords a superior
basis ofliability to the unwieldy common law offence that preceded it”, it has
nonetheless been criticized by both academics and practitioners for facilitating “fewer
prosecutions than predicted, [the] unjustifiable inconsistency in sentencing, a
continued lack of individual accountability and a prosecutor preoccupation with a
limited range of defendant”. –
Victoria Roper, 2018.
Critically analyse the above assessment.
Executive Summary:
The Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA 2007) came after a lengthy
and tumultuous gestation period. Following several high-profile events and a pendulum of various
drafts, recommendations and proposals made by bodies such as the government, the Law
Commissions and academics, the CMCHA 2007 was meant to be the panacea from the ails of the
common law that preceded it. This is to say that it was the Act that was to give a wider reach in finding
organisations liable and guilty of manslaughter caused by serious management failures through
grossly negligent breaches of duty of care. It aimed to serve as a vanguard on legislation against
corporate killing, a deterrent for lax health and safety practices and ultimately lead to more
prosecutions of corporate manslaughter. Yet, as many critics have lamented, it has resulted in being a
far cry from these noble objectives.
This paper begins with a brief assessment on the historical context through which the Act was created
and the problems the Act sought to address. This includes the inadequacies of the previous common
law regime such as the ‘restrictive’ identification doctrine, captured in previous cases and academic
criticism. Thereafter, through evaluating the aims of the Act, we will review the extent to which it has
resolved, maintained or in fact extended these defects, in relation to the four elements in Roper’s
assertion. The question of fewer prosecutions is largely analysed through an assessment of three factors:
the use of the Senior Management Test, the need to establish a duty of care, and the need forconsent
of Director of Public Prosecutions (DPP). The paper suggests that the former two are not as obstructive
to prosecution as feared, signalled through Mr Justice Coulson’s liberal interpretation on the test and
all cases involving clear established duty of care between employees and employers as s. 2(1)(a) of the
CMCHA 2007. However, both remain largely untested so cannot be said to have increase nor decrease
the number of prosecutions. As for the DPP factor, it is argued this can result in political interference
and threaten fewer prosecutions.
The latter parts of Roper’s statement are analysed as follows. The question of the unjustifiable
inconsistency is explored through issues such as fining, highlighted in instances whereby cases have
evaded full punitive measures. The question of a continued lack of individual accountability is made
through exploring the exclusion of individual liability, whereby an argument is made that lack of
liability undermines true accountability. This question of individual accountability is further explored
through the feature of plea-bargaining which has resulted in individuals escaping liability. Through
plea-bargaining, we also identify that there is indeed a prosecutor preoccupation with a limited range
of defendant. Collectively, these all validate each of Roper’s concerns.
Throughout the essay, reference is made to how the current law surrounding CMCHA could relate the
catastrophe of the Grenfell Fire. Sir Martin Moore-Bick said he would ‘not shrink’ from making findings
or recommendations on grounds that criminal charges might be brought. If corporate manslaughter
charges ensue, particularly against various bodies such as contractors, designers, and the local
authority, Grenfell could provide the watershed moment for the CMCHA 2007.

2. Tahmid Chowdhury (2020) – Law School
The paper concludes that Roper is correct in the statement though it requires more nuance. The
‘superior basis’ CMCHA has is more a ‘confidence trick’ through being a symbolic gesture, but each of
the four criticisms hold strong validity until a convincing, large complex entity is prosecuted. Until such
time, we should be cautious to give undue praise to the CMCHA; even a broken clock is still correct
twice a day.
Essay:
One of the major obstacles to securing a conviction under pre-CMCHA 2007 common law regime that
dealt with gross negligence manslaughter was the Identification Doctrine. This required there tobe an
individual holding a sufficiently senior position in a company such that they could be recognised as its
‘directing mind and will’1
. They also had to be identified as fulfilling the elements of the gross
negligence offence: fatality following a gross breach of a duty of care which posed a risk of death2
, and
this doctrine was first established in Tesco v Nattras3
where employees who qualified as the ‘controlling
mind’ were distinguished between those in the management level of the company oronly an
operational level.
Despite several high-profile disasters in the 1980s-90s, only four resulted in corporate manslaughter
proceedings4
. Amongst them of particular significance was the incident of P&O European Ferries
1987.5
Whilst this was unsuccessful, it was a landmark case as it was this case that gave recognition
of the legal possibility that a corporate body can be brought under a charge of manslaughter.6
In fact,
this provided the basis in the Law Commission’s proposal to legislate corporate killing as an offence.7
The key challenge of identifying a senior manager as the directing mind as per the identification
doctrine requirement, the failure of which resulted in the prosecution’s failure, highlighted that the
identification doctrine was a ‘legal barrier to potential corporate criminal liability’8
particularly in
prosecuting larger companies.
This notion that larger companies were far more likely to avoid liability9
, was reinforced in not only
other unsuccessful attempts to convict large corporations of killing by gross negligence, such as
Southall10
and Paddington rail crashes and the fires of Piper Alpha and King’s Cross, but also even in
the first successful corporate manslaughter prosecution case of R v Kite11
. In this case, the defendant
was the sole director of the small one-man company. It was thus clearly discernible that the managing
director was the directing mind and will12
. The pattern of only small companies being convicted gave
critics much ammunition in contending that the identification doctrine ‘does not
1 Amanda Pinto & Martin Evans, Corporate Criminal Liability (2nd edn, Sweet & Maxwell, 2008)
2 Ormerod. D. & Taylor. R. ‘Legislative Comment: Corporate Manslaughter and
Corporate Homicide Act 2007’ Crim. LR 589. 2008.
3 Tesco Supermarkets Ltd v Nattras [1971] UKHL 1
4 Field, S., and Jones, L., ‘Death in the workplace: who pays the price?’ (2011), Company Lawyer, vol.32(6), 166.
5 R. v P&O European Ferries (Dover) Ltd (1991) 93 Cr. App. R. 72
6 Celia Wells, Corporations and criminal responsibility (2nd edn, Oxford University Press, 2001)106
7 Law Commission, ‘Legislating the Criminal Code: Involuntary Manslaughter’ (Law Com No 237,
1996)
8 Parsons, S., ‘The Doctrine of Identification, causation and Corporate Liability for Manslaughter,’ (2003), Journal of
Criminal Law, vol.67, 69.
9 Redfern, R., ‘The limitations of corporate manslaughter,’ (2000), Coventry Law Journal, vol.5(1), 37.
10 R v Great Western Trains Co Ltd, unreported, Central Criminal Court, June 1999
11 R v Kite [1996] 2 Cr. App. R (S) 295 CA (Crim Div)
12 Hsaio, M., ‘Abandonment of the doctrine of attribution in favour of gross negligence test in the corporate Manslaughter
and Corporate Homicide Act 2007,’ (2009), Company Lawyer, vol.30(4), 2.

3. Tahmid Chowdhury (2020) – Law School
make for a rational scheme of liability13
, and the ‘larger the company, the more likely it will be to
avoid liability’.14
Collectively, these cases demonstrated the notorious difficulty in establishing gross negligence
manslaughter and proving a causal link between an act made by ‘the directing or controlling mind of
the company’ under the identification doctrine. Such events increased public, legislative and political
awareness of the legal framework and it was within this context and at this critical juncture that the
call for a reformation of law also began to take motion. Whilst the first Law Commission Paper
reviewed the law on corporate manslaughter, the second proposed the new offence of corporate
killing.15
However, calls for many aspects were ignored in the eventual Act, such as including individual
liability and only requiring consent from the DPP for private prosecutions.
Nonetheless, after a considerably lengthy and tumultuous gestation period, the CMCHA was finally
introduced in 2007. Amongst its core aims was to increase the ability, and therefore number, of
prosecutions in relation to corporate manslaughter. It also sought to circumvent the procedural
deficiencies that existed under the existing common law, particularly, as mentioned above, the
inability to prosecute larger organisations, thereby creating a level playing field amongst enterprises.
To that end, the ‘restrictive’ and stringent identification doctrine16
was replaced by the ‘senior
management test’ in the CMCHA 200717
with the hope of an increased number of prosecutions. This
test is surmised in the Act: ‘An organisation [...] is guilty […] if the way in which its activities are
managed or organised caused a person's death and amounts to a gross breach of a relevant duty of
care owed by the organisation to the deceased [...] and the way in which its activities are managed
or organised by its senior management is a substantial element in the breach.’18
Whilst many have criticised the ambiguity of vague terminology such as ‘substantial’19
, the lack of
clarity of ‘senior management’ did not necessarily have to be a bad thing. The Maidstone and
Tunbridge Wells NHS Trust20
case demonstrates the somewhat flexibility of how courts may apply
the senior management test to organisations with complex organisational structures21
, something
that the identification doctrine could not address. In this case, a woman died following a highly
precarious caesarean section operation, and this led to corporate manslaughter charges against
the NHS Trust, as well as gross negligence manslaughter charges against two anaesthetists. The
Honourable Mr Justice Coulson alleviated the fear of earlier critics such as Ormerod and Taylor22
thatunder the CMCHA 2007 the prosecution required identification of specific individuals, instead
suggesting that it was enough to identify the ‘tier of management that it considers to be the lowest
level of the senior management team’23
and that it was not necessary to ‘delve deep into the
labyrinth management structures’.24
This would suggest that the senior management test need not
13 Sullivan, G., ‘The Attribution of Culpability to Limited Companies,’ (1996), Cambridge Law Journal, vol.55(3), 518.
14 Redfern, R., ‘The limitations of corporate manslaughter,’ (2000), Coventry Law Journal, vol.5(1), 37.
15 Law Commission, Legislating the Criminal Code, (1996), Part VIII.
16 Celia Wells, Corporations and criminal responsibility (2nd edn, Oxford University Press, 2001) 123
17 s1(4)(c) CMCHA 2007
18 s1 CMCHA 2007 (emphasis added)
19 James Gobert, The Corporate Manslaughter and Corporate Homicide Act 2007 – Thirteen years
in the making but was it worth the wait?, Modern Law Review (vol. 71, issue 3) 2008. P422
20 R v Dr Errol Cornish and Maidstone and Tunbridge Wells NHS Trust [2015] EWHC 2967 (QB)
21 Victoria Roper, The Corporate Manslaughter and Corporate Homicide Act: a 10-year review, J. Crim. L. (82(1)) 2018. p59 22
Ormerod. D. & Taylor. R. ‘Legislative Comment: Corporate Manslaughter and Corporate Homicide Act 2007’ Crim. LR 589.
2008.
23 R v Dr Errol Cornish and Maidstone and Tunbridge Wells NHS Trust [2015] EWHC 2967 (QB) per
Honourable Mr Justice Coulson at 35.
24 supra

4. Tahmid Chowdhury (2020) – Law School
be viewed as the burden once feared and is a significant step forward, as this wider scope includes
people who otherwise would have been excluded under the previous identification doctrine.25
Roper further supports her claim that the ‘senior management test does not appear to have been the
overwhelming barrier to securing prosecutions that many experts feared through citing the high
number of guilty pleas and predominance of SMEs: ‘there are more SMEs than large companies, SMEs
employ more people than large companies and fatalities are far more likely to be caused by SMEs
than large companies’.26
This would also suggest there has not been an ‘inconsistency in sentencing’
smaller companies, rather the justification is that instances of corporate manslaughter from large
companies statistically would be less likely anyway. For these reasons, the test has not been the cause
of problems and the 26 convictions to date under the CMCHA 2007 is testimony to that the SMT is
not the barrier to convictions.
However, it is important to contextualise these convictions. Of the 26 convictions to date, 16 have
comprised guilty pleas and all, bar one, involve small companies whereby senior management failure
is much easier to establish27
. Wells argues this leaves the “senior management test unchallenged”28
,
and Parsons posits that all of these cases could have been successfully prosecuted for manslaughter
under the identification doctrine with its controlling officers’ test29
, referencing JMW Farm Ltd,
Cotswold Geotechnical and R v Lion Steep Equipment Ltd. This would render the test unimpressive
and unconvincing in being a development from before, unwittingly continuing the preoccupation with
the individual opposed to systemic fault. There is also threat of an incentive for entities to create more
complex management structures, so to lessen the opportunity of a senior management be culpable of
playing a ‘significant role’ and thereby immunising themselves from prosecution. For Roper’s view to
be more cogent, there is a requirement of further judicial testing particularly of a large and complex
company.
There is also a requirement of nuance to the criticism of the Act beyond the focus of large companies
towards other types of organisations outside of the corporate sphere. This includes councils such as
that of Kensington, which may be forthcoming following Scotland Yard’s claim therewere ‘reasonable
grounds’ to suspect both them and Chelsea Tenant Management Organisation of corporate
manslaughter.30
. If the act can be successful, this would bolster/strengthen the claim of it creating a
‘level playing field’ for organisations. If Roper’s assertion that the ‘opaqueness of the senior
management test [has] potentially been clarified’31
is to be accepted, this must be proved in the way
it is applied by judges on both larger companies and other complex bodies beyond companies.
Another aspect of the CMCHA 2007 that has been heavily criticised for adding ‘unnecessary legal
complications’32
as described by the Joint Committee and resulting in ‘fewer prosecutions’ is the
need to establish a duty of care. Many academics criticise the Act for introducing a civil law concept
25 Richard D Taylor and David Omerod, The Corporate Manslaughter and Corporate Homicide Act
2007, Crim. LR. 860. 2008.
26 Roper, ‘The Corporate Manslaughter and Corporate Homicide Act 2007 – a 10-year review’,’ 73.
27Tariq, M., ‘A 2013 look at the corporate killer,’ (2014), Company Lawyer, vol.35(1), 19.
28 Wells, ‘Corporate criminal liability: a ten year review,’ 860.
29 Parsons, S., ‘The Doctrine of Identification, causation and Corporate Liability for Manslaughter,’ (2003), Journal of
Criminal Law, vol.67, 69.
30 Dodd, V. and Sherwood, H. , Grenfell council ‘may have committed corporate manslaughter – met polite’, The Guardian,
28 July 2007 Available at: https://www.theguardian.com/uk-news/2017/jul/27/met-says-grenfell-council-may-have-
committed-corporate-manslaughter (accessed 20 September 2020).
31 Roper, ‘The Corporate Manslaughter and Corporate Homicide Act 2007 – a 10-year review’,’ 50.
32 Home Affairs and Work and Pensions Committees, Draft Corporate Manslaughter Bill: First Joint Report of Session 2005-
2006, (Volume 1: Report, HC 540-I), 2005. P3

5. Tahmid Chowdhury (2020) – Law School
into criminal offences. Interestingly, earlier proposals such as the 1996 Draft Bill did not require an
organisation to owe a duty of care, but rather it only required that there be management failure by
the corporation which was the cause, or one of the causes, of death33
. This approach would no doubt
make prosecution much easier, leading to critics such as Clarkson describing it as ‘superior’.34
Contrarily, the establishment of the duty of care precept has not proved a stockade against
prosecutions. This can be elucidated through how all cases to date have involved employees, with
duty of care between employees and their employers clearly observable in s. 2(1)(a) of the CMCHA
2007.35
Where the relationship is not of this nature, such as for the residents of the Grenfell Tower,
the judge will need to establish a duty of care. This may not be a significant an issue as individual
liability exclusion but could still prove an obstacle.
The topic of duty of care from public bodies can also shed light on the limited range of defendant. R
v Maidstone and Tunbridge Wells NHS Trust was a landmark case as it was the first instance of a public
body facing charges of corporate manslaughter.36
However, there are instances in which public bodies
are exempted in the Act, including response of the emergency services37
, the weighingof competing
public interests38
and the allocation of public resources.39
These exemptions could provide a defence
for the bodies such as The Department of Health and NHS trusts, who could face criminal charges if
they are responsible for a substantial gross breach of duty in their deploying of Personal Protective
Equipment (PPE) and handling of Covid-19. Sections 3-7 of the Act exempts “decisions of a public
authority in relation to issues of public policy (such as the allocation of public resources)”. A care
home for example may also be able to demonstrate national shortage and arguethat their breach of
duty was not a ‘gross failure’ and a ‘relevant’ factor under s 8(4).
The potential for political influence is another significant problem that may serve as a barrier to
effectively bringing successful prosecutions under CMCHA 2007. This is a conundrum that was
discussed in the Law Commission40
in its suggestion to have no requirement of consent from the DPP
for private prosecutions. The CMCHA 2007 however did the opposite of this, extending such consent
to be a requirement for both public and private prosecutions.41
The Government have justified this
through arguing that a removal of this requirement would lead to ‘insufficiently well-founded
prosecutions’ which would in turn result in ‘unfair burdens on the organisation involved with possible
irreparable financial and personal harm.’42
Gobert explains the sophism behind this, through
describing the process of how the DPP must report to the Attorney-General who speak forthe CPS in
Parliament43
. This exposes the link to Parliament and the potential that MPs who can belobbied and
influenced by corporations could interfere consent from a prosecution for corporate manslaughter.
Contrary to Gobert’s fear, some MPs have shown the opposite for the Grenfell Fire.
33 Roper, ‘The Corporate Manslaughter and Corporate Homicide Act 2007 – a 10-year review,’ 51
34 C. M. V. Clarkson, Corporate manslaughter: yet more Government proposals, Crim. L.R. 2005. 677
35 s. 2(1)(a) CMCH Act 2007
36 Field, ‘Criminal liability under the CMCHA 2007: a changing landscape,’ 232
37 s. 6 CMCHA 2007
38 The Corporate Manslaughter and Corporate Homicide Act 2007, s. 3(1)
39 s. 3(1) CMCHA 2007
40 Law Commission, ‘Legislating the Criminal Code: Involuntary Manslaughter’ (Law Com No 237,
1996) para 8.6.6
41 ibid
42 Home Office, The Government's Draft Bill for Reform (2005) at para 60
43 James Gobert, The Corporate Manslaughter and Corporate Homicide Act 2007 – Thirteen years in
the making but was it worth the wait?, Modern Law Review (vol. 71, issue 3) 2008. P430

6. Tahmid Chowdhury (2020) – Law School
Kensington MP Emma Dent Coad44
and Tottenham MP David Lammy45
have both explicitly called for
prosecutions of corporate manslaughter. However, to use this line of argument is to be done with
caution, as corporate lobbyists can be discrete in their lobbying of other MPs. This highlights the high
speculation and shortcomings surrounding the procedural elements pertaining the Act, and analysis
on the effect on criminal convictions is difficult. This does however elucidate a major potential
problem of political influence that may arise, and thereby serves as a barrier to the effectiveness in
bringing prosecutions. This could prove catastrophic for the Grenfell outcome, particularly given only
a few months before, Southwark Council was convicted of fire safety regulation breaches for a fire at
Lakanal House in 2009.46
Worryingly, phase 1 of the Grenfell Tower Inquiry has found the London Fire
Brigade were found to have ‘failed to learn or put into practices the lessons of that event’.47
Whilst
the Act shows progression, it requires a response to disasters of incredibly great magnitude such as
these to prove it has overcome potential barriers to lead to fines,remedial orders and convictions.
Nevertheless, it is interesting Gobert asserts the symbolic significance of the Act ‘may ultimately
transcend its methodological deficiencies [as] it signifies that companies are not above the law’.48
The claim is that the fear of prosecution and ‘reputational risk’49
would vitalise corporations to be
more heedful in prioritising health and safety. If Gobert’s assessment is seen as true, on one hand, it
supports Roper’s affirmation of ‘fewer prosecutions than predicted’ through a positive light – as it
would suggest the likelihood of corporate killing, and therefore prosecution, is far less likely. On the
other hand, Gobert’s view is not a sufficient analysis in addressing whether the basis of the Act is
successful in fulfilling its objectives, nor is a true ‘superior basis of liability’ but rather merely a
confidence trick. The former is not a convincing reality either, given that 147 workers were killed at
work in Great Britain in 2018/9,50
a number consistent with the ‘unacceptably high’51
figures recorded
in the 1990s. Given this number, the best deterrent for lax practices, as the Act originally intended, is
an increase in the number of convictions for corporate manslaughter.52
Practical shortcomings and
fewer prosecutions should therefore not be justified in this manner of ‘symbolic significance’ to
support a matter of law, despite arguments being made that the Act is meeting the aim of being a
stronger deterrent against poor health and safety practices.53
44 Lucy Pasha-Robinson, Grenfell: Councillors cannot keep jobs now corporate manslaughter
charges being pursued, says Kensington MP https://www.independent.co.uk/news/uk/politics/grenfell-tower-fire-
councillors-corporatemanslaughter-kensington-mp-emma-dent-coad-labour-chelsea-a7865611.html (Accessed 20
September 2020)
45 Ashley Cowburn, ‘Grenfell Tower fire is 'corporate manslaughter' and arrests must be made,
says MP David Lammy.’ http://www.independent.co.uk/news/uk/politics/grenfell-tower-fire-
corporatemanslaughterarrests-david-lammy-mp-labour-london-kensington-a7790911.html (Accessed 18 September 2020)
46 Gayle, D. ‘Southwark council fined £570,000 over fatal tower block fire. Available at: https://www.theguardian.com/uk-
news/2017/feb/28/southwark-council-fined-570000-over-fatal-tower-block-fire (accessed 20 September 2020)
47 Grenfell Tower Inquiry: Phase 1 Report Overview Chairman: The Rt Hon Sir Martin Moore-Bick Octoer 2019
https://assets.grenfelltowerinquiry.org.uk/GTI%20-%20Phase%201%20report%20Executive%20Summary.pdf (accessed 20
September 2020)
48 James Gobert, The Corporate Manslaughter and Corporate Homicide Act 2007 – Thirteen years in the
making but was it worth the wait?, Modern Law Review (vol. 71, issue 3) 2008. P431
49 L. Trevelyan, ‘Fatally Flawed?’ (2005) Law Society Gazette, 6 May 2005.
50 Health and Safety Executive, Health and Safety Statistics 2018/9, (London: HSE), at: http://www.hse.gov.uk/statistics/
(Accessed 16 September 2020)
51 Home Office, Corporate Manslaughter: The Government’s Draft Bill for Reform (2005) at para.
52 VictoriaRoper,The Corporate Manslaughter and Corporate Homicide Act: a 10-year review, J. Crim.
L. (82(1)) 2018. p50
53 J. Gobert, ‘The Corporate Manslaughter and Corporate Homicide Act 2007—Thirteen years in the making but was it
worth the
wait?’ (2008) 71 Modern Law Review 413 at 420.

7. Tahmid Chowdhury (2020) – Law School
The notion of unjustifiable inconsistency54
in sentencing can be further evaluated through the fines,
the extent of which led to Field and Jones claiming that throughout most cases, the courts have
demonstrated a greater concern with ‘protecting the viability of the offending company than meeting
minimum thresholds’.55
This indicated they are concerned more with the ‘financial health ofthe
company rather than the interests of justice.’56
In the case of Mobile Sweepers (reading) Ltd in 2014,
Judge Boney commented the fine would have been closer to £1 million if the company had a larger
turnover, but instead fined only £8,000.57
This notion is further supported through how only three
cases, CAV Aerospace58
, R v Sterecycle (Rotherham) Ltd59
, and Baldwins Crane Hire60
, have met the
previous minimum threshold of £500,000 set by the Sentencing Council.61
As such, there is a worry of
inconsistent sentencing to date through fining. There is hope that New Sentencing Guidelines can be
a step forward from the ‘unnecessarily weak’62
previous guidelines, but until suchtime a case can
demonstrate this we cannot say this with accuracy, and praising the Act for allowingfines to an
organisation up to an unlimited 63
number would be premature. The straightforward way of
overcoming this shortcoming and easing the fear of inconsistency is to increase the level of fines and
demonstrate that the courts are not hesitant from issuing punitive measures to the fullest extent.
In the context of Grenfell, if fines are imposed on the Royal Borough of Kensington & Chelsea, there
may be a challenge of it being a ‘pointless gesture’ as fining a public body can be at the expense of
the taxpayer. Opposers may argue that the state does not operate as a single unit, and the threat of
a fine in damaging a public bodies budget can be a powerful disincentive. Indeed, the New Sentencing
Guidelines which state that fines would be reduced considerably if the public body can illustrate the
proposed fine would have a ‘significant impact on the provision of their services’64
could help alleviate
the concern also. Regardless, if the Council is successfully prosecuted, courts ought to be prudent in
ensuring there is reconciliation between taking punitive measures and ensuring the safeguarding of
public interest.
A significant paradox, and well documented cause of controversy, is how the Act patently excludes
individual liability, despite requiring the identification of individuals. This is specified in s.18: ‘an
individual cannot be guilty of aiding, abetting, counselling or procuring the commission of an offence
54 Victoria Roper, The Corporate Manslaughter and Corporate Homicide Act: a 10-year review, J. Crim. L. (82(1)) 2018. p59
55 Sarah Field and Lucy Jones, The Corporate Manslaughter and Corporate Homicide Act 2007 and the sentencing guidelines
for corporate manslaughter: more bark than bite?, Company Lawyer, 36 (11). 2015. p6
56 Victoria Roper, The Corporate Manslaughter and Corporate Homicide Act: a 10-year review, J.
Crim. L. (82(1)) 2018. P.67
57 R v Mobile Sweepers (Reading) Ltd (unreported), Winchester Crown Court, 26 February 2014.
58 R v CAV Aerospace Limited [2015] unreported
59 R v Sterecycle (Rotherham) Limited and others [2014] unreported
60 R v Baldwins Crane Hire Limited [2015] unreported
61 Sentencing Council, Health and Safety Offences, Corporate Manslaughter and Food Safety and
Hygiene Offences Definitive Guideline (2016) at 26. Available from:
https://www.sentencingcouncil.org.uk/wp-content/uploads/HS-offences-definitive-guideline-FINAL-web.pdf (accessed 18
September 2020)
62 Slapper, G., ‘Corporate Punishment’ (2010) 74 JCL 181 at 182.
63 Section 1(6).
64 Sentencing Council, Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive
Guideline (2016) at 26. Available from: https://www.sentencingcouncil.org.uk/wp-content/uploads/HS-offences-definitive-
guideline-FINAL-web.pdf (accessed 19 September 2020)

8. Tahmid Chowdhury (2020) – Law School
of corporate manslaughter.’65
This is in spite of the 2000 Proposal’s concern that if individual liabilitywas
to be excluded, then the offence would not sufficiently fulfil its deterrent purposes66
. This is because
no matter how severe, the liability of individuals succumbs to being ‘absorbed by the liability of the
corporation’.67
Hooper68
recognises this as problematic, as it was the Governmentwho recognised
that ‘without punitive sanctions against company officers, the proposed new offence might not
provide a sufficient deterrent’.69
Roper’s statement of a ‘continued lack of individual accountability’
must be encapsulated within this shortcoming; one can argue how can there be true accountability
when there is no liability? Whilst individuals may still be prosecuted for s.37 of the HSWA or for gross
negligence manslaughter, the reality is that the requirement of proving a duty of care can render this
a difficult task. This is evidenced in the case of R V Adomako, where the directors were found to own
a fiduciary duty but not a duty of care. The outcome is whatGobert described as a vast gulf between
senior managers convinced for gross negligence manslaughter and those who are knowingly
complicit in their company’s manslaughter offence.70
The difficulty with having multiple ‘potential charges from the same death’71
is that it presents the
opportunity for plea bargains, further diminishing individual accountability. 16 of the 26 cases to date
have considered plea-bargaining. Ideally, the prosecution should only accept pleas whereby the
sentence ‘matches the seriousness of the offending’72
but evidence demonstrates that this has seldom
proved the case. In fact, Wells, writing in 2014, recognised a pattern of ‘trade off’73
where a corporate
manslaughter guilty plea allowed directors to be absolved of gross negligence and/or health and
safety charges. In SR and RJ Brown74
for example, two gross negligence manslaughter charges were
dropped in exchange for other guilty pleas, and in Lion Steel Equipment75
, two chargesof gross
negligence manslaughter were dismissed due to a guilty plea for corporate manslaughter and a fine
of $480,000. This heavily supports Roper’s statement of lack of individual accountability and
preoccupation with a limited range of defendant, as through guilty pleas, several individuals can
escape liability entirely. Therein lies another irony, company directors who possess a fiduciary duty76
to ‘promote the success of the company’77
are able to offer a corporate guilty plea ‘in the hope or
knowledge that any individual liability will be dropped with the added bonus of a reduction in any
subsequent fine.78
This also undermines the view of superiority over the previous law; as Field and
Jones conclude “the current picture would suggest that directors are in fact escaping prosecution, and
thus being treated more leniently than was the case prior to the CMCHA”.79
65 s. 18 CMCH Act 2007
66 Home Office, ‘Reforming the Law on Involuntary Manslaughter: The Government’s Proposals’,
May 2000 para 3.4.8
67 Menis, ‘The fiction of the criminalisation of corporate killing’, 477.
68 Hooper, L. (2019). 'Are Corporations Free to Kill? Rethinking the Law on Corporate Manslaughter to Better Reflect the
Artificial Legal Existence of Corporations', The Plymouth Law & Criminal Justice Review, Vol. 11, p130
69 House of Commons Library, The Corporate Manslaughter and Corporate Homicide Bill, (Bill 220 of 2005-06), 34.
70 James Gobert, The Corporate Manslaughter and Corporate Homicide Act 2007 – Thirteen years in the making but was it worth
the wait?, Modern Law Review (vol. 71, issue 3) 2008. P422
71 C. Wells ‘Corporate Criminal Liability: A Ten Year Review’ [2014] 12 Crim LR 849.
72 Crown Prosecution Service, Accepting Guilty Pleas, para.9.2.
73 C. Wells ‘Corporate Criminal Liability: A Ten Year Review’ [2014] 12 Crim LR 861
74 Health and Safety Executive v SR and RJ Brown (unreported), Manchester Crown Court, 16 March 2017.
75 R v Lion Steel Equipment Limited (2012) unreported
76 Hooper, L. (2019). 'Are Corporations Free to Kill? Rethinking the Law on Corporate Manslaughter to Better Reflect the
Artificial Legal Existence of Corporations', The Plymouth Law & Criminal Justice Review, Vol. 11, p130
77 Companies Act 2006, s.172
78 Woodley, ‘Bargaining over corporate manslaughter,’ 39.
79 S. F. Jones and L. Field, ‘Are Directors Getting Away with Manslaughter? Emerging Trends in
Prosecutions for Corporate Manslaughter' (2014) 35 Business Law Review 158. p163

9. Tahmid Chowdhury (2020) – Law School
A potential way to overcome these issues could be to follow the 2000 Proposal’s encouragement of
provisions that allow a separation for criminal proceedings for individuals who contributed to the
management failure and allow them to be liable to a penalty of imprisonment.80
As under the current
regime, out of the 25 convictions of corporate manslaughter, only two individuals in the caseof R v
Bilston Skips Ltd81
have been convicted also of gross negligence manslaughter. Contrarily, further case
law could be enough to suggest the courts approach to individual liability can change and that
individuals can be convicted in addition to a corporate offender. Once again, convictions against senior
individuals for wrongdoing pertaining the Grenfell fire could provide that. However, the trend to date
would give more credence to the harrowing view that managers who were aware of and ‘brushed
away’82
concerns regarding defects in the fire alarm, cladding and escape route could escape liability
whilst the companies – for example KCTMO – face a hefty fine instead. One only need to look at the
P&O European Ferries and R v Kite cases as mentioned above, to expose some of the consequences
that can result from individual liability immunity. In the former case, management were aware of the
need for indicator lights83
, and in R v Kite, Justice Ognall states Mr Kite had received notice ‘in chillingly
clear terms of the risk’ of safety breaches. This highlights how the fatal flaws of senior individuals can
be overlooked and this is a major flaw of the CMCHA 2007.
This assessment of the CMCHA 2007 has shown that each element of Roper’s criticisms are not only
valid, but they also expose its failures in reaching its desired aims and the limitations posed as to the
potential efficacy for future cases. Granted, there has been progress from the common law that
preceded it through creating a broader reaching offence and the bodies to whom it can apply; yet
given that 25 of the 26 convictions to date being small to medium-sized organisations, there remains
great ambiguity and doubt as to its success. The introduction of the duty of care and ‘senior
management test’ in CMCHA 2007 has done little to increase the number of prosecutions, as their
lack of centrality in cases to date show that many of these convictions would have occurred under the
old identification doctrine anyway. In fact, the manner in which the senior management test has been
deployed, focusing on individualistic rather than systemic fault, has simply allowed a continuation of
the difficulty in convicting larger, more complex, organisations. Furthermore, even its symbolic effect
is a ‘fudged compromise’ as it panders entities via a confidence trick rather a superior basis in reality.
Paradoxically, despite this individualistic focus, Roper’s criticism of a lack of individual accountability
is convincing given the sheer number of gross negligence manslaughter charges against individuals
that have been dropped in exchange for a corporation’s guilty plea. The exclusion of individual liability
has undermined this. Indeed, the nature of this plea bargaining is itself indicative of both a
preoccupation with a limited range of defendant, and an unjustifiable inconsistency in sentencing
marred by the judiciary’s inability to enforce punitive measures. The potential for political influence
to disrupt prosecutions is also a woeful and frightening reflection of this. Whilst political intervention
is unlikely for Grenfell given seemingly MP support for conviction, there is high likelihood for senior
80 Home Office, ‘Reforming the Law on Involuntary Manslaughter: The Government’s Proposals’, May 2000 para 3.4.13
81 R v Bilston Skips Ltd (unreported), Wolverhampton Crown Court, 16 August 2016; Health and Safety Executive v
Sherwood Rise Ltd(unreported), Nottingham Crown Court, 5 February 2016.
82 Robert Booth and Calla Wahlquist, Grenfell Tower residents say managers 'brushed away' fire safety concerns, The Guardian,
14th June 2017. Available from:
https://www.theguardian.com/uk-news/2017/jun/14/fire-safety-concerns-raised-by-grenfelltower-
residents-in-2012 (accessed 20 August 2020)
83 Mr. Justice Sheen, Herald of Free Enterprise Report, Report of Court No.8074. Formal Investigation, 1987

10. Tahmid Chowdhury (2020) – Law School
individuals to trade gross negligent manslaughter charges for a guilty plea, should prosecution
ensue.
Whilst the CMCHA 2007 has demonstrated progress from the previous unwieldy common law, to
truly bolster it as ‘superior’ is a statement that remains to be proven until a large and/or complex
organisation is convicted. Perhaps, and hopefully, the handling of Grenfell and/ or various public
body approaches to Covid-19 could provide a more promising story for the Act. Until such time, the
latter part of Roper’s assertion holds the strongest validity, as this paper has argued: barriers such as
companies evading liability through plea-bargaining, incoherent fining and the unjust potential of
political influence have together led to substantial practical difficulties in prosecution and facilitated
“fewer prosecutions than predicted, [the] unjustifiable inconsistency in sentencing, a continued lack
of individual accountability and a prosecutor preoccupation with a limited range of defendant”. We
should therefore be cautious of giving undue praise to CMCHA 2007 and let future consistency be
the true test of progression; even a broken clock is still correct twice a day.
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