Who can be Prosecuted?

The new offence of ‘corporate manslaughter can only be committed by organisations. Individuals cannot be prosecuted; indeed they cannot even be charged with ‘aiding’ or ‘abetting’ an organisation who commits this offence. A key issue therefore is which organisations can be prosecuted for the offence.

Companies/crown bodies:
The offence will apply to all companies whether they are private companies (registered under the Companies Act 1985) or public bodies set up as companies in legislation (like Local Councils of NHS Trusts). It will also apply to all crown bodies, whether they are companies or not (except the security services which are totally excluded, and the military when they are involved in certain activities).

However, certain deaths which result from activities like the detention of prisoners, or from public policy decision-making cannot result in a prosecution. Although these exclusions are most likely to apply to crown bodies, they can also apply to private companies (i.e. some prisons are operated by private companies) or non-crown public bodies (i.e local councils make public policy decisions). These exclusions are dealt within the section on crown bodies, (click here)

Unincorporated Bodies
One group of organisations that will not be able to prosecuted for this offence are unincorporated organisations (unless they are crown bodies). So partnerships (i.e. law firms, some building societies and organsiations like the John Lewis store) and unincorporated associations (like schools or clubs) will be exempt. This is a change from the Government’s position as set out in its 2000 consultation document where it supported (against the recommendation of the 1996 Law Commission report) the application of the offence to all employing organisations.

The government’s reasoning on this issue is not clear. The Government says that it is concerned that allowing the new offence to apply to unincorporated bodies would not be reforming the law but extending since they cannot at present be prosecuted for manslaughter,. However extending the application of the law is exactly what the Bill does in relation to crown bodies (which cannot be prosecuted now for manslaughter). The report also indicates some practical concerns about prosecuting organisations which do not have separate legal entities (as companies do). However, most crown bodies are in a similar situation, yet the government now accepts that crown bodies can be prosecuted.

The police: Interestingly, however, Police forces are one kind of unincorporated body that the Government considers should be able to be prosecuted for this offence.