On Thursday 1September 2011, Section 2 (1) (d) of Corporate Manslaughter and Corporate Homicide Act 2007 comes into effect, bringing into force a new corporate manslaughter liability for all entities responsible for detaining people in custody (police service/ prison service/ mental health secure units/ deportation units/ MOD run detention facilities etc). <π>The Government, when enacting the 2007 Act in 2008, agreed to give these entities three years in which to gear themselves up for this potential liability, not least to ensure sufficient training and practices were in place.
The change raises the possibility of state and privately run organisations with responsibility for custody being prosecuted where individuals have died as the result of neglect on the part of the organisation. Examples may include prisoners who die because they are held in an unapproved manner, failure to evacuate in fires, the death of a prisoner in transit due to a badly maintained vehicle or even the suiscide of a prisoner who has signaled intent to self-harm.
Jonathan Grimes, criminal and health & safety law expert of solicitors Kingsley Napley, said: "Existing law (the common law offence of Gross Negligence Manslaughter) already allows a 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.
"Rather, the Corporate Manslaughter and Homicide Act is about holding an organisation to account where its negligence causes a death. As such the change is to be welcomed, not least since it may focus custody providing organisations on ways they can ensure the safety of those they are responsible for detaining - and that may help to reduce certain preventable deaths.
"It is an odd feature of the Act that its jurisdiction is limited to England, Scotland , Wales and Northern Ireland (see by contrast the common law offence of Gross Negligence Manslaughter which is one of 'universal jurisdiction' meaning that UK national can be convicted in relation to a death which occurs overseas). 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."
Previously, individuals could be prosecuted for gross negligence following a death in custody, but the company or public body, could not. One company (Cotswold Geotechnical Holdings Ltd) has so far been convicted of the offence following the death of a geologist killed while collecting soil sample in an un-shored trial pit. It was fined £385,000. It appealed unsuccessfully against the level of this fine.