On 4 April 2017 it was announced that the CPS had made a decision to charge two firms over the death of a man on 30 October 2012 whilst held in an immigration detention centre.

Six days after arriving at the centre and six days before his scheduled departure flight, Prince Kwabena Fosu, a 31 year old Ghanaian national, was found dead on his cell floor at Harmondsworth in London. On 4 April, the CPS announced that GEO Group UK Ltd – the company running Harmonsworth at the time – and Nestore Primecare Services Ltd – the centre’s healthcare services provider – would be prosecuted under section 3 of the Health and Safety at Work Act 1974 (“HSWA”). Section 3 of the HSWA requires companies such as GEO Group and Nestore Primecare to ensure that they take reasonable care of the health and safety of someone affected by their undertaking. This overarching duty, if breached, carries a maximum sentence on conviction of an unlimited fine.

Whilst almost certainly considered, it is not known why the CPS did not authorise a charge of corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA). Whilst the CMCHA is most commonly used for employee deaths, its use for non-employee incidents has precedent. First seen in the 2013, Prince’s Sporting Club was convicted for the death of an 11 year old girl hit by speedboat during a friend’s birthday party. February 2016 saw the first corporate manslaughter conviction of a care home, Sherwood Rise Limited, after 86 year old Ivy Aitkin died from dehydration, malnourishment and untreated bed sores. In May 2016, building firm Monavon Construction pleaded guilty to corporate manslaughter and fined £500,000 following the October 2013 deaths of two men who fell 20ft into a half-built basement building site. Furthermore as the 2014 Sterecycle case showed, prosecuting large corporates, like GEO and Nestore, for CMCHA offences is not impossible. Indeed the CMCHA was brought in to bring corporates into the frame without the need to prove the Tesco v Nattrass ‘identification principle’.

It may be that the CPS failed to find sufficient evidence of causation. A corporate can only be found guilty under the CMCHA of manslaughter if the way in which it conducts or organises its activities causes a person’s death and amounts to a gross breach of a duty of care. The way in which the company’s activities are managed or organised by senior management needs to be a substantial element of that ’breach’. Without causation a prosecution will fail – as happened in the 2014 acquittal of Norfolk-based horticultural business following the death of their employee by electrocution. However a conviction for a HSWA offence can still be achieved – as the above-mentioned horticultural business found. Whist acquitted under the CMCHA, the company was successfully convicted of breaching section 2 of the HSWA.

This is important because with no proof of causation necessary, the threshold for a conviction is much lower whilst still carrying the power to impose multi-million pound fines under the new guidelines. So is there a growing trend of using health and safety legislation to prosecute rather than the CMCHA? Well, there has been a notable decline in the number of corporate manslaughter cases brought since new sentencing guidelines for health and safety offences came into force in February 2016. Although perhaps too early to draw this conclusion with certainty, it does seem possible that the new guidelines and the much greater fines that have been imposed in the period since then, have in some way been connected to this decline.