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Corporate manslaughter - A legal theory or a practical reality?
The main objective of this study is to identify whether or not Corporate Manslaughter is simply a legal theory or a practical reality. This is to be considered both in light of the existing law and the new bill on Corporate Manslaughter.
- To consider the current law on corporate manslaughter; to consider the reality/practicality of the test of directing minds;
- To consider the theory of corporate manslaughter; to consider in particular causation and Mens Rea;
- To consider Corporate Manslaughter’s relationship with Health and Safety Law;
- To consider whether or not in reality there exists such a thing as corporate manslaughter;
- To consider the impact the new bill is likely to make (theoretically and practically)
A statement of intent will allow the author to conclude on whether theresearch has answered the question. This will focus the paper on theoriginal aim
In 1993-1994 the Health and Safety Executive recorded 379 deaths atwork and over 28,900 non-fatal major injuries (HSE: 1994). By 1995-1996, the fatalities figure had fallen a little to 344, but the majorinjuries had risen to 30,968. The 1996-1997 figures are morealarming--in the categories "employed" and "self-employed", a total of44 more people were killed than the previous year. More recently in2003-2004 235 people were killed whilst at work and 30, 666 workerssuffered from serious injuries and 129, 143 people suffered minorinjuries at their workplaces. There is now considerable evidence thatabout 70 per cent of deaths and serious injuries at work-to employeesor members of the public--result from managerial and systemic faults inoperations (HSE:2004)
Over the last 20 years, a series of large-scale disasters have testedthe current law on corporate manslaughter, however as illustratedabove, large scale disasters are just part of the picture. Despiteinquiries levelling very serious criticisms at corporate failures, nosuccessful prosecution for manslaughter has yet been brought against amajor corporate defendant. Trials collapsed, largely owing to thedifficulty of mounting a manslaughter prosecution against bigcompanies. The Law Commission consequently undertook a review of thelaw on involuntary manslaughter in 1994 and 1996 followed by agovernment consultation paper, reforming the Law on InvoluntaryManslaughter, published in 2000.
Five years later, at the end of March 2005, the long awaited draftCorporate Manslaughter Bill was finally published heralded in theQueen's speech of November 2004. The government published a newconsultation document alongside the draft Bill, Corporate Manslaughter:The Government's Draft Bill for Reform.
The first stage is to discuss the topic; this will sound off ideas,fellow students and colleagues will be involved. This will addpractical ideas and suggestions, and hopefully open new avenues ofthought.
The next stage will be the literature review. The purpose of this isto discuss theories and ideas that exist on the topic and this, willform the majority of the paper. This secondary research willcomplement and test the findings from any primary research.
Tertiary data sources, such as library catalogues and indexes will bescanned for secondary data. This will produce an exhausting list ofjournals and newspaper articles, published books and Internetaddresses. With the amount of literature, it will take time to sortout the relevant material for the research. To narrow down the searchBell’s (1993) six point’s parameters will be applied.
This chapter will discuss the current law on manslaughter, discussingits implementation and the advantages and disadvantages of the currentlaw, this chapter will lead the way for discussion of the new CorporateManslaughter Bill.
Before considering in detail the law that relates to CorporateManslaughter, the history of corporate criminal responsibility will beconsidered. The first case to recognise the fact that companies, likeindividuals, are susceptible to prosecution was the case of Hennen vSouthern Counties Dairies Co Earlier decisions approached thisquestion on an offence by offence basis. At the same time the courtsdeveloped what has become known as the doctrine of extensiveconstruction in order to fulfil the actus reus element of a crime . This allowed the physical acts of employees to be regarded as those ofthe company for whom they work. For example, where a shop assistantsells goods on behalf of the company, the physical act of sale is thatof the shop assistant. However, since it is the company's goods thatare sold, and with whom the contract is created, they can also beregarded as having sold the goods. For example, it is an offence unders. 1(1)(b) of the Trade Descriptions Act 1968 to offer to sell goods towhich a false trade description has been applied. The doctrine ofextensive construction has been utilised in this instance in order thatthe company can be regarded as having committed the actus reus ofselling its goods to another .
However, the question that has caused the courts no end of difficultyis in applying notions of mens rea to a corporation. As pointed out byHainsworth “a corporation, has no mind, no thoughts, and noawareness”. (Hainsworth: 2001). Although in Pearks, Gunston & TeeLtd v Ward; Hennen v Southern Counties Dairies Co it was acceptedthat a company could be criminally liable under the offence in s. 6 ofthe Food and Drugs Act 1875, Channell J warned that:
“By the general principles of the criminal law, if a matter is made acriminal offence, it is essential that there should be something in thenature of mens rea, and, therefore, in ordinary cases a corporationcannot be guilty of a criminal offence.”
The courts and the legislature both rose to the challenge posed bythe presence of mens rea in the majority of criminal offences at thetime, and enthusiastically developed a variety of doctrines and schemesof fault designed to hold companies and corporations criminally liablefor their acts.
The favoured doctrine of corporate fault was and still is the approachof imputing the mens rea of the directing mind and will of the companyhas found the most favour with the courts. The courts have decided as amatter of general principle that the board of directors of a companycan be regarded as its personality for the purposes of fulfilling themens rea element of a crime .
A major problem with the identification doctrine as a blueprint forcorporate criminal liability lies in the fact that it is a specialdoctrine developed in order to hold companies liable for offences thatare primarily intended for sanctioning the conduct of humanindividuals; it is a makeshift means of satisfying notions ofindividual culpability. Traditional notions of mens rea, based as theyare on the presence of guilty minds on the part of human actors, areinherently unsuited to testing corporate fault. Notwithstanding theimportance of the identification doctrine in the infancy of corporatecriminal liability, it remains nevertheless one of the bluntest legaltools ever to emerge from the courts' shed. If it is accepted that theculpability of a company can be determined by its policies, managementstructures and procedures, (Wells:2001) then the fault of thedirecting mind and will does not wholly equate with the fault of thecompany.
It has been clear from the beginning of the modern development ofcorporate liability that a corporation may be held liable for breach ofduty imposed on it personally, although no individual is guilty. InBirmingham & Gloucester Railway it was held that an indictmentwould lie against a company for failing to obey the order of themagistrates to construct arches to connect land which the constructionof the railway had severed. No individual officer was (or could havebeen) charged with failure to perform this duty. The only person whocould commit the offence as a principal was the corporation. Nor was itthought necessary to identify any officer who had procured thecommission of the offence. This was a case of misfeasance, however inthe case of Great North of England Railway Co 315 Lord Denman C.J.extended the principle to cases of misfeasance. The long indictmentidentifies no individual officer or member of the corporation as theauthor of the misfeasance. Indeed one of the grounds of the decisionwas that the author might not be identifiable in which case no onecould be made liable if the corporation could not. In Tyler and theInternational Commercial Company Bowen L.J., discussing the case wherea statute prescribes the duty in the company itself, said, at 592:
"How can disobedience to the enactment by the company be otherwisedealt with? The directors or officers of the company, who are reallyresponsible for the neglect of the company to comply with the statutoryrequirements, might not be struck at by the statute, and there would beno way of enforcing the law against a disobedient company, unless therewere in such cases a remedy by way of indictment."
The decision in Attorney- General’s Reference (No 2 of 1999) demonstrates clearly the ineffectiveness and inadequacy of theidentification doctrine. The prosecution in Attorney-General’sReference arose out of the Southall train crash. The Crown sought tocircumvent the identification doctrine by arguing that if the corporatedefendant, Great Western Railway, could be shown to have been grosslynegligent, it should not be necessary for it to have to prove anyindividual's gross negligence in order to secure a conviction. Thecompany's alleged gross negligence consisted of permitting its train tooperate without either the Automatic Warning System (AWS), which wouldhave alerted the driver when he went through a yellow light, or theAutomatic Train Protection (ATP), which would have automaticallybrought the train to a halt in these circumstances. Both of thesesystems were installed on the train in question but neither wasoperational at the time. As a result, the driver had no technologicalback-up when his attention lapsed and he failed to observe two yellowwarning signals and a red stop signal. The trial judge dismissed themanslaughter charges against Great Western and the Court of Appealaffirmed. The rationale of the Court of Appeal was that no evidence hadbeen presented that a specific corporate officer had behaved in agrossly negligent manner. Accordingly, this absence of proof defeatedapplication of the identification doctrine. (Gobert:2002)
Wells has recently pointed out that one effect of thisidentification doctrine is that the more diffuse the company structure,the more it devolves power to semi-autonomous managers, the easier itwill be to avoid liability. (Wells:1989) This is of particularimportance given the increasing tendency of many organisationsspecifically to decentralise safety services .
Jorg and field (Jorg & Field:1991) suggest the reason for theeras ability of this doctrine lies in criminal law theory which, theyargue has been much influenced by H L A Hart’s depiction of thesecapacities as “psychological characteristics of persons. ” (Hart:1968) The human mind is seen as central to these qualities and moralpersonality is restricted to individual sentient human beings.
Another difficulty, Jorg and Field point out is that it is hard tograsp the reality of multiple legal personality, i.e., that one singlehuman may, in different contexts take on different legal identities. Although it is clear that a single human body is not one and only onelegal person. (Jorg & Field:1991)
The identification doctrine creates a dichotomy that fails toacknowledge the indissoluble connections between individuals incollective enterprises like the corporation. Raymond Williams(Williams:1965) pointed put that in the understanding of human action,one should be aware of the complex web of relationships into which eachperson enters, and that this should be the focus of analysis, ratherthan the abstractions of “individual” or “society”
The problems of the identification doctrine are exacerbated inEngland and Wales by the rejection of aggregation of fault. It wassubmitted in R. v. H.M. Coroner for East Kent, ex.p. Spooner that itwas not necessary to find someone identified with the corporation whowas individually liable in order to make that corporation liable. Itwas argued that it was possible or ought to be possible to aggregatetogether the fault of several of the directing minds so that variousacts of minor negligence or recklessness could be seen in to asinvolving more serious fault on the part of the corporation itself.Bingham L.J. responded to this argument:
"I do not think the aggregation argument assists the applicants. Acase against a personal defendant cannot be fortified by evidenceagainst another defendant. The case against a corporation can only bemade by evidence properly addressed to showing guilt on the part of thecorporation as such."
But this is a circular argument. The issue is whether the mens rea ofthe corporation can be established by aggregating the fault of thosewho embody the corporation. The last sentence merely begs the question:what represents "proper" evidence in this context? The aggregationargument is thus rejected without serious argument. Mr. Justice Turnerwas equally dismissive in the P. & O. trial, saying that theaggregation argument ran "directly counter to all the cases that haverecently been decided in the House of Lords ."
This failure to delineate responsibilities will always cause problemsif fault cannot be aggregated. If responsibility for the proactivedevelopment of safety monitoring is not vested in any particular groupor individual, it becomes harder to say of any particular "directingmind" that his/her failure to consider such matters represents aculpable failure by that individual. If one cannot say this, withoutaggregation of fault, the corporation itself cannot be found culpable.Collective responsibility becomes lost in the crevices between theresponsibilities of individuals. (Jorg & Field:1991)
The consequence of the various decisions under this law is thatsuccessful prosecutions will only be possible where the corporation issmall with controlling officers having direct control over operationalmatters which caused the deaths.
The Common Law authorities suggest that the basic principle ofcorporate manslaughter is that where an offence requires mens rea acorporation cannot be held vicariously liable. However in everycorporation there are certain persons who control and direct thecompanies’ activities, as Smith and Hogan point out:
“their acts and states of mind are the company’s acts and states ofmind and it is held liable, not for the acts of its servants, but forwhat are deemed to be its own acts” (Smith and Hogan:1989)
The difficulty that therefore arises is distinguishing who can beseen to be the controlling officer. In the leading case of Tesco vNattrass it was made clear that acts carried out by shop-floor workerswith the relevant mens rea for manslaughter cannot be attributed to thecorporation itself.
On December 8, 1994, OLL Ltd became the first company in Englishlegal history to be convicted of homicide (Slapper:1994). Peter Kite,45, its managing director, also became the first director to be givenan immediate custodial sentence for a manslaughter conviction arisingfrom the operation of a business. Both defendants were found guilty onfour counts of manslaughter arising from the death of four teenagerswho drowned off Lyme Regis while on a canoe trip, on March 22, 1993,organised by the defendant leisure activity company. OLL Ltd was thecompany that ran the centre. The same charges were brought againstJoseph Stoddart, manager of the centre, although he was acquitted onthe direction of the judge when the jury at Winchester Crown courtfailed to reach a verdict after deliberating for 9 1/2 hours.
Mr Kite was sentenced to three years imprisonment, and the companywas fined £60,000. It was a catalogue of errors which led to thedeaths of the four teenagers who drowned having been in the sea forover four hours after their canoes capsized. Prior to the trip, theteenagers had received only one hour of tuition in a swimming pool byunqualified staff. The weather forecast on the day of the trip had notbeen checked properly, distress flares were not provided by thecompany, and the only safety equipment possessed by the instructors wasa whistle. The students' canoes did not have "spray decks" to keep outwater. Nine months before the disaster two instructors had left thecompany because they were not satisfied with its safety policy. Onewrote a letter to the managing director, Mr Kite, urging him to take a"careful look" at safety otherwise he might find himself explaining"why someone's son or daughter will not be coming home". Givingevidence, one witness, a former instructor at the company, testifiedthat the safety standards were "practically non-existent". First aidkits, flares, hooded waterproofs, and tow ropes were not provided.Saving on these costs, although endangering children, clearly benefitedthose who enjoyed the company's profits: OLL Ltd made a profit of£242,603 in the year ending October 1992.
The activity centre did not alert the rescue services when thecanoeists failed to arrive at their destination on time, as the centrewas unaware of what time the students had departed. The planned trip,two miles on open sea, was unsuitable for such novices, and thecoastguard had not been alerted. The court was told that theinstructors were barely competent to make the trip themselves, letalone supervise the eight children and their teacher.
When Mr Stoddart did begin to worry about the safety of those on thetrip, he tried to look for them himself by driving a car along coastalroads before he alerted the coastguards, and then, when he did alertthe rescue services he wrongly told them that the children had flares.
In HL Bolton (Engineering) Co Ltd v TJ Graham & Sons Ltd , LordDenning said that whether a person is a directing mind depends uponwhether they are "directors and managers who represent the directingmind and will of the company and control what it does".
In the failed prosecution for corporate manslaughter of P&OFerries that followed the sinking of the Herald of Free Enterprise in1987, the trial judge emphasised the need to prove that the personprosecuted as the directing mind had sufficient responsibility forsafety
What the current prosecution against Barrow Borough Council appears toindicate is that in order to overcome the difficulties in linking theconduct of a large organisation with someone senior within it, theprosecution may be attempting to expand the category of persons who canbe included in the term 'directing mind'.
To convict a company of corporate manslaughter, the prosecution mustprove the company's conduct, which led to the deaths, was the conductof a senior person in the company-the directing mind (also oftenreferred to as the 'controlling mind'). In practical terms, this meansthat for a company to be guilty of corporate manslaughter a seniorperson (normally a director) also has to be guilty of manslaughter.
The difficulty with these cases, particularly against largercompanies with layers of management, is proving a causal link betweenthe conduct (or lack of it) of the directing mind and the incident thatcaused death. There have only been a few successful prosecutions todate, all against small companies where it is easier to prove the link.
There are further inherent difficulties in proving currentmanslaughter under the current law. If a prosecution can mount, theinsurmountable hurdles of identification and directing minds, they thenhave the problematic issue of causation to deal with.
In order to establish causation the prosecutions will have to establishas the immediate cause of death the act of the company employee. In thecase of the Southall rail crash, the immediate cause of death was theemployee train driver's act of driving the train through a red light.It is unclear whether this act would break the chain of causation, sothat Great Western Train's failure to forbid trains operating withoutoperating warning systems would be regarded as not a cause of the deathof seven people, but rather as a stage already set in which thedriver's act could operate. Academic opinion is that deliberatevoluntary conduct should be a novus actus. It is unlikely that thetrain driver would have deliberately driven through a red light-thathappened because of the driver's lack of attention, i.e. hisnegligence. Here the law of causation, which concentrates on medicalnegligence, is also unclear as to when the chain of causation isbroken. Perhaps the answer is to regard the train driver's conduct notas an act but as an omission to stop, as generally an omission by athird party can have a concurrent causative effect, although suchfailures to act are not regarded as breaking the chain of causation . The basis of the company's fault lies in its failure to anticipate theforeseeable negligence of its employee.
The Court of Appeal had the opportunity to restate the law relatingto corporate liability for manslaughter. There were a number ofpossibilities, the most familiar being the retention of theidentification doctrine but with gross negligence being found by meansof aggregating the fault of more than one controlling officer:
“Gross negligence is concerned with conduct, not states of mind. . .. The question in manslaughter is: did the conduct of the defendantdeviate so far from the standard required as to deserve condemnation asmanslaughter? A failure by one director, A, in his duty to establish asafe system of work might result in a slight deviation from thestandard, so as, if it caused death, to ground a civil action againstthe corporation but no more. But additional failures by directors B andC might result in a gross deviation by the corporation” .
This possibility of aggregation has been accepted in the law of tort, but it is rejected by Rose LJ for the criminal law and to supportthis rejection there is reliance on the obiter dictum of Bingham LJ inR v HM Coroner, ex p. Spooner that '[f]or a company to be criminallyliable for manslaughter. . . it is required that the mens rea and theactus reus of manslaughter should be established. . . against those whowere identified as the embodiment of the company itself'. However,Bingham LJ's obiter comment was made when manslaughter was consideredto be a crime of mens rea and it has been long accepted that it isnot possible to aggregate subjective states of mind: 'you cannot add aninnocent state of mind to an innocent state of mind and get as a resulta dishonest state of mind '. But now there is the House of Lords'decision in R v Adomako which has made it clear that manslaughter isa crime of negligence. It was therefore open for Rose LJ to applyaggregation in finding gross negligence without the need to disavow theidentification doctrine.
The difficulty is that even if the faults of various controllingofficers are added together the aggregation may not amount to grossnegligence in a large corporation because the organisational reality isthat none of the controlling officers has responsibility for humansafety as that responsibility has been delegated to others within thecorporation. As has been noted this is the primary reason why theprosecution against Great Western Trains failed. To represent theorganisational reality aggregation needs to include the faults of thoseothers within the corporation, but unfortunately there is no clearauthority that allows for this. It has been suggested that LordHoffmann in Meridian Global Funds Management Asia Ltd v SecuritiesCommission above was not imposing vicarious liability but rather wasstretching the identification doctrine to include wider personnel thancontrolling officers. (Wells :2001) But that case was concerned withan offence requiring mens rea and, therefore, does not directly supportthe proposition that aggregation can include the negligence of a widerpersonnel than just controlling officers.
Manslaughter is a single offence, but is categorised as 'voluntary'or 'involuntary'. Voluntary manslaughter has the same ingredients asmurder but some mitigating circumstance, for example, provocation, thatreduces the crime to that of manslaughter. Involuntary manslaughter maybe classified as (1) unlawful act manslaughter or (2) manslaughter bygross negligence .
Gross negligence manslaughter involves the doing of a lawful act "andin the course of doing that lawful act (the defendant) behaves sonegligently as to cause the death of some other person. An omission toperform some legal duty would also be prosecuted under this head. Theduty to act may be prescribed by a statute or recognised as a 'duty'situation at common law .
Negligence, is of course the, breach of a common law duty of care whichcauses actionable damage, but in criminal law "simple lack of care suchas will constitute civil liability is not enough ". "Mere inadvertenceis not enough." The civil standard for negligence is a failure to dowhat a reasonable person in the circumstances would do, or doingsomething that such reasonable person would not do. In criminal grossnegligence the conduct complained of is so extreme as to be far outsidethe range of behaviour expected from the reasonable person. In cases ofcriminal gross professional negligence the reference standard is thatof a competent practitioner in that profession. (Craig:1998)
In Lord Mackay's opinion the test for assessing negligence in relation to gross negligence at common law is as follows:
"the ordinary principles of the law of negligence apply to ascertainwhether or not the defendant has been in breach of a duty of caretowards the victim who has died. If such breach of duty is establishedthe next question is whether that breach of duty caused the death ofthe victim. If so, the jury must go on to consider whether that breachof duty should be characterised as gross negligence and therefore as acrime. This will depend on the seriousness of the breach of dutycommitted by the defendant in all the circumstances in which thedefendant was placed when it occurred. The jury will have to considerwhether the extent to which the defendant's conduct departed from theproper standard or care incumbent upon him, involving as it must havedone a risk of death to the patient, was such that it should be judgedcriminal."
The court has used several different definitions to ascertain theamount and degree of negligence to be found for a jury to make afinding of gross negligence . The real difficulty, and as pointed outin the case of Andrews , “is the element of “unlawfulness.” Many testshave been adopted but the language that has been used appears to beinconsistent. As a general observation, the test for gross negligencecan be said to be: applying an objective standard, is the defendant’sconduct so gross as to justify a criminal, as opposed to merely civil,penalty? In the case of Adomako Lord Mackay referred to “a risk ofdeath. ” Although a lesser risk has been held to be sufficient for amanslaughter conviction, for example in the case of Bateman, the courtreferred to “a disregard for life and safety ”and in Stone andDobinson, Geoffrey Lane LJ said that the defendant “must be proved tohave been indifferent to an obvious risk of injury to health, oractually to have foreseen the risk to have determined nevertheless torun it ”
Successful prosecutions have been mounted under the Health andSafety at Work Act 1974. Under the current law, companies can beprosecuted for breaches of duty under ss 2 and 3 of the Health andSafety at Work Act 1974. These provisions require companies to ensure"so far as is reasonably practicable" the health and safety ofemployees and non-employees. The case of Edwards v National Coal Board defined "reasonably practicable" as weighing up the risk on one sideagainst the "sacrifice" on the other, in terms of "time, trouble andmoney" to avert the risk.
In order to bring a conviction under the Health and Safety at Work Act1974, the prosecution needs to prove that the company created a risk,not that the risk resulted in death. A convicted company can be finedan unlimited amount and these fines are set out in the Crown CourtGuidance on sentencing . The court said any fine should reflect thegravity of the offence, and also the means of the defendant. However,in a press release on 5 November 2003, director of the Health andSafety Executive Timothy Walker complained that fines were still toolow. He said:
"It is incomprehensible that fines for especially serious bigcompany breaches in health and safety are only a small percentage ofthose fines handed down for breaches of financial services in similarlylarge firms. I understand that financial service breaches can affectpeople's wealth and well-being, but breaches in health and safety can,and do, result in loss of limbs, livelihoods and lives." (HSE:2003)
A individual director can also be prosecuted, pursuant to s 37 HSWA1974, if the company's breach was due to "neglect". However, thedirector can only be, not sent to prison. If convicted, the HSE canapply for him to be disqualified under the Company Directors'Disqualification Act 1986.
At present, the courts only have power to impose custodial sentences ina few health and safety offences. The government and Health and SafetyCommission's strategy document, Revitalising Heath and Safety (June2000), recommended higher fines and making imprisonment more widelyavailable for health and safety breaches.
The Company Directors Disqualification Act 1986 allows a court tomake a disqualification order against a person who is convicted of anindictable offence connected with the promotion, formation, managementor liquidation of a company . It was intimated by Viscount Ullswater,the then Parliamentary Secretary of State, that this should apply tohealth and safety matters:
“In our view section 2 of the Company Directors Disqualification Act1986 is capable of applying to health and safety matters….We believethat the potential scope of section 2(1) of that Act is very broad andthat “management” includes the management of health and safety ”
This interpretation of the Act has been followed judicially. MrRodney Chapman was found guilty of an offence under s37 of the Healthand Safety at Work Act. In June, 1990 a prohibition notice was servedon Chapman Chalk Supplies Ltd at Filching Quarry, Jevington. It wasalleged that the quarry had been worked in an unsafe manner resultingin significant danger from falls of rock. The HSE inspectors had goodreason to be concerned about this sort of danger. The previous year 11people had been killed in quarry work and there were 160 reported casesof major injuries to quarry workers.
In September, 1990 the company appealed to an Industrial Tribunalfor the lifting of the prohibition notice. An order was made that theprohibition notice would only be lifted on condition that the HSE wassatisfied with the steps that had been taken to make the quarry safe.Nevertheless, employees were back at work on August 12, 1991 withoutprior approval of the HSE and so the company was in contravention ofthe Tribunal order and section 33 of the HSWA which makes it an offenceto contravene the terms of a Prohibition Notice served under section 22of the Act.
Mr Chapman was fined £5000. The company was fined the same amountand ordered to pay costs of £3,553. It was observed that Mr Chapman hadexposed his employees to great danger. She used the power under section2(1) of the Company Directors Disqualification Act 1986 to ban MrChapman from being a company director for two years.
This chapter will discuss the Manslaughter Bill, it will discuss thebackground and rationale behind its introduction. It will also exploreopinion on the perceived effectiveness of it. It will considerwhether the bill makes corporate manslaughter any more of a practicalreality.
In 1996 the Law Commission proposed that a new offence of “corporatekilling” be introduced (Law Commission No.237(1996) The Governmentthen produced, in 2000, a Consultation Paper on InvoluntaryManslaughter which agreed with the Law Commission’s findings that anoffence of Corporate Killing should be introduced (Home Office:2000). Five years later the Government has now published a new version ofthese proposals together with a draft bill. (Home:Office:2005)
The main reason for the reform were that the governmentacknowledged in the consultation document that larger companies withcomplex management structures have proven difficult to prosecute formanslaughter under the current law: (Forlin:2005) "Since 1992 therehave been 34 prosecution cases for work-related manslaughter, but onlysix, small, organisations have been convicted.
"This has given rise to public concern that the law is notdelivering justice, a feeling that has been underlined by the lack ofsuccess of corporate manslaughter prosecutions following a number ofpublic disasters. Examples of such incidents include the Herald of FreeEnterprise ferry disaster in 1987 and the Southall rail disaster in1997; prosecutions failed in both cases."
To highlight this point it should be pointed out that no-one hasbeen held accountable for the deaths of any of the 31 people who diedin the Kings Cross fire in November 1987. Similarly, no-one has beensuccessfully prosecuted for the deaths of 187 people who died when theHerald of Free Enterprise capsized off Zeebrugge, nor for the 167fatalities in the Piper Alpha oil platform disaster. Sadly, the list ofinstances where no-one has been brought to account for loss of life inmajor disasters is lengthy. The absence of criminal convictions is allthe more shocking because many of the companies in question have beenseriously criticised. (Bailee & Johnson:2004)
The draft Bill is therefore designed to secure a wider range ofcases in which a conviction could be secured "for a specific, seriouscriminal offence that properly reflects the gravity and consequences ofthe conduct involved".
The introduction to the consultation paper sets out that the keypart of these proposals is "striking the right balance between a moreeffective offence and legislation that would unnecessarily impose aburden on business". The draft Bill achieves this by focusing on whatis currently wrong with the law: the need to find a very seniorindividual personally guilty of gross negligence manslaughter beforethe company itself can be convicted. At the heart of the new offence,therefore, is a more effective means of attributing an organisation'sfailure to the way its activities were organised or managed at a seniorlevel.
The new bill proposes that the common law offence of manslaughter bygross negligence as it is applied to companies be abolished . Toreplace this bill proposes that there is a new offence of “corporatemanslaughter” which will be committed by an organisation:
“If the way in which any of the organisation’s activities are managed or organised by its senior managers: -
(a) Causes a persons death, and
(b) Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased ”
The first point that should be noted is that this draft bill istargeted at the failings in the strategic management of anorganisation’s activities and not at those of a more junior level. AsClarkson (Clarkson: 2005) points out, given that no individual can beculpable “this insistence on identifying the senior managers seemsunduly restrictive and threatens to open the door to endless argumentin court as to whether certain persons do or do not constitute seniormanagers.” Conversely as Whyte (Whyte:2005) points out “In order toattribute corporate liability for a serious offence, such asmanslaughter or homicide, it is clearly not appropriate to allow thecriminal conduct of any individual in the organisation to triggerliability.” Whyte provides an example of the Canadian approach whichappears to represent a middle line. Canadian C-45 Bill which passedinto law in November 2003, the conduct of the company's"representatives" is the first consideration in determining theoffence. Representatives can be employees, agents or contractors of theorganisation. A corporate offence is committed if, at the same time,senior officers who have responsibility for the aspect of theorganisation's activities relevant to the offence have "departed from astandard of care that could have been reasonably expected in thecircumstances". Canadian law therefore makes it more explicit thatcorporate liability can be triggered by the conduct of relativelyjunior employees
The next issue that arises is exactly how “gross breach” is going tobe defined. The definition in the bill focuses on the failings of thecompany rather than on the acts or omissions of an individual withinthe company. The problem, therefore, lies in identifying conduct whichdoes fall far below what can be reasonably expected in the particularcircumstances. Firstly there must be a breach of a “relevant duty ofcare.” This is defined as meaning “a duty owed under the law ofnegligence by the organisation.” This test has been drawn from thetest of gross negligence manslaughter, set out in the case of Adomako ,however this test is not without its problems, as pointed out in thecase of Wacker. In the Court of Appeal it was said that the law oftort and criminal law have different objectives and so concepts such asduty of care need to be adapted to the different areas of law in whichthey are applied .
The bill defines a senior manager as one who “plays a significantrole” in “the making of decisions about how the whole or substantialpart of its activities are to be managed or organised, or the actualmanaging or organising” of those activities .
It can be seen that the offence has two elements to it, first itmust be shown that the organisation in question owed a duty of careunder the law of negligence . Secondly, there must have been a grossbreach of that duty in the way that the senior managers manager ororganise the organisation’s activities and that breach must cause thedeath of a person.
A gross breach of duty will occur if “the failure in questionconstitutes conduct falling far below what can reasonably be expectedof the organisation in the circumstances. ” In deciding whether therehas been a gross breach of duty, the jury must consider whether “theorganisation failed to comply with any relevant health and safetylegislation or guidance and if so:
(a) How serious was the failure to comply;
(b) Whether or not senior managers of the organisation
(i) Knew, or ought to have known, that the organisation was failing to comply with that legislation or guidance;
(ii) Were aware, or ought to have been aware, of the risk of death or serious harm pose by the failure to comply;
(iii) Sought to cause the organisation to profit from that failure ”
Thebill does also make clear that these provisions should not prevent thejury from having regard to any other matters which they consider to berelevant to the question of whether there has been a gross breach ofduty .
The third criterion that the senior managers of the organisation“sought to cause the organisation to profit from the [sic] failure” isproblematic. As what this effectively does is to introduce arequirement that is likely to be very difficult to demonstrate andwhich, it is argued, will lead to unnecessary complexity. Juries willhave to consider complex evidential arguments on the issue of whetheror not a profit motive existed. This requirement effectively raises thebar to prosecution and introduces wholly unnecessary complexity intothe process.
This offence will apply to all corporate bodies and companies andalso to other types of bodies, particular those in the public sector . This offence will not apply to individual directors or managers, and anindividual will not, under this bill, be found guilty of aiding,abetting, counselling or procuring the offence of corporatemanslaughter . The sanction for this offence will be an unlimitedfine and a remedial order which will require the organisation to takespecific steps to remedy the breach of duty that has occurred .
It seems unjust that the bill will not allow for individualdirectors or managers to be held to account for their actions. Asindividuals, as has been demonstrated above, such individuals wouldstill be liable to prosecution under the health and safety legislationor even for the common law offence of gross negligence manslaughter.
The document accompanying the bill states that: "the heart of the newoffence lies in the requirement for a management failure on the part ofits senior managers ... the test for management failure focuses on theway in which a particular activity was being managed or organised. Itfocuses on responsibility on the working practices of the organisation... it considers wider questions about how, at a senior managementlevel, activities were organised and managed."
It goes on to say: "In particular this allows senior managementconduct to be considered collectively, as well as individually."(Home:Office:2005)
An organisation's senior management is defined as: "only those whoplay a role in making management decisions about, or actually managing,the activities of an organisation as a whole or a substantial part ofit ... it is intended to cover, for example, management at regionallevel within a national organisation, such as a company with a nationalnetwork of retail outlets, factories or operational sites". Thedocument adds that it is targeting "those responsible for the overallmanagement of each division". (Home:Office:2005)
The document stresses that "the offence is to be reserved for casesof gross negligence, ie a gross failure that causes death which isconduct that falls far below what can be reasonably expected in thecircumstances", and further, whether they knew or ought to have knownthere were failings or risk of death or serious injury or sought theorganisation to profit from the failure. (Home:Office:2005).
As we have seen above, the basis of liability will change under thenew law, taking the focus away from a single senior individual who must'embody' the organisation. Instead, senior management conduct will bekey. Additionally, the decisions and systems put in place by seniormanagers may be viewed collectively.
The objective focus on what senior management should do means thatit will not be possible for senior managers to delegate their dutiesdown the management chain simply to avoid prosecution. Inappropriatedelegation could itself be seen as gross negligence.
There is concern that the interpretation of what a senior manageractually is may lead to discrepancies across different organisations.The current definition allows for fluidity to reflect the fact thatmanagement decisions are made at different levels in differentorganisations. Each organisation establishes its own style ofhierarchy, and the smaller the organisation, the more blurred thedistinction between management and supporting roles can be. (Coutino:2005)
As we have seen above, the Bill envisages fines for organisationsguilty of corporate manslaughter. It should also re-state theestablished principle that compensation should take priority; thisshould include reparation and remedial action, which a large fine mightimpede.
Similarly when an organisation fails to carry out remedial action: afine would do nothing to remedy the failings. Senior managers who havenot taken remedial action, made the promised reparation or paidcompensation, ought to make personal contributions from their salariesand assets, or be disqualified from holding their positions, so thatthey could be replaced by others who would fulfil these obligations.(Wright:2005).
The bill envisages that the fine will be unlimited and, "where thecircumstances of the case merit, a fine can be set at a very highfine". (Home Office:2005) The current highest fines for health andsafety offences are £ 1.5m against GWT at the Southall Crash and £ 2mfor Thames Trains after Paddington. Both of these were after guiltypleas. Forlin suggests that “under the new Bill will be higher uponconviction or plea, given the enhanced social opprobrium the offenceattracts”. (Forlin:2005). The Bill also sets out other sanctions suchas the court imposing remedial orders on offending organisations, akinto those available for health and safety offences, enabling the courtsto require that specific action be taken to address, within a specifiedtime, the failures that led to death
Some examples show how these proposals could work. The Australiancriminologist John Braithwaite found "strong evidence that persuasionworks better when workers and unions [representing the victims of thecrime] are involved in deliberative regulatory processes". In theBritish coal industry, before World War I, often a thousand miners losttheir lives in a year in the pits, and the average number ofprosecutions was 1,309. By 1980-81 there were no prosecutions, and in1982-83, fatalities had decreased to 44. But there are limits to whatBraithwaite calls "responsive regulation": rapacious big firms andincompetent little ones will not or cannot respond responsibly. Anotherexample was the discharge of mercury-containing waste into Minamatabay, in Japan. People who had eaten the contaminated fish sufferedparalysis, nervous disorders and even death. The Chisso Corporationagreed to pay each victim an average of £ 20,000 compensation and todredge the bay, but this left it with a large deficit. Rather thanallow the company to become bankrupt, the government issued bonds sothat it could continue to trade and meet these liabilities.
A solution like this would put the wellbeing of relatives andsurvivors first. Senior managers would be more likely to admitresponsibility, take part in a dialogue, and fulfil their reparativeobligations. They could constructively make amends, by meeting theneeds of relatives and survivors and taking steps to prevent arecurrence. There is evidence that such measures are more likely to becarried out when decided by agreement, but there should also be arestorative system for inspection and enforcement, which would makefatal disasters less likely to occur in the first place.
The current proposal would mean that different consequences wouldarise under the criminal law for negligent killing, depending on thetype of organisation that was responsible. This raises the question ofpossible incompatibility with Arts 2,13 and 14 of the EuropeanConvention on Human Rights, if the offence is not applied tounincorporated associations, as much as any other distinction overwhere the offence does and does not apply in analogous situations.Article 2 covers the duty not to deprive people of life , to safeguardthem and investigate death and Art 13 to provide effective remediesfor a failure of Convention duties. Nor does providing a criminal lawremedy of corporate manslaughter but restricting its application tobodies having a certain legal form suggest compatibility with Art 14,which provides a guarantee against discrimination in the enjoyment ofthe rights set forth in the Convention. Accordingly those who aresubjected to a difference in treatment in the enjoyment of rightscompared to others who are in a comparable position, without objectiveand reasonable justification, could give rise to claims. (Coutino:2005)
This dissertation has considered both the existing and proposed lawin relation to corporate manslaughter and now it will consider, inconclusion whether or not this concept is a practical reality or alegal theory, examination of the case law and proposed legislationwould suggest that it is neither.
The new law does not provide a much better basis for bringing toaccount managers and those who wilfully cut on safety provisions inorder to make a quick profit. It is difficult to see exactly how thecorporate manslaughter bills differs from the criminal sanctionscontained with in the Health and Safety at work act, both imposepenalties. In order to bring a conviction under the Health and Safetyat Work Act 1974, the prosecution needs to prove that the companycreated a risk, not that the risk resulted in death. A convictedcompany can be fined an unlimited amount and these fines are set out inthe Crown Court Guidance on sentencing . The court said any fine shouldreflect the gravity of the offence, and also the means of thedefendant. This is no different, it appears, than the proposalscontained within the draft bill
Furthermore the Health and Safety legislation actually goes furtherthan the draft bill as it allows for a individual director can also beprosecuted, pursuant to s 37 HSWA 1974, if the company's breach was dueto "neglect". However, the director can only be, not sent to prison. Ifconvicted, the HSE can apply for him to be disqualified under theCompany Directors' Disqualification Act 1986.
The draft bill is at best confused, and does reflect what can onlybe described as a legal theory. For example how is “gross breach”going to be defined. The definition in the bill focuses on thefailings of the company rather than on the acts or omissions of anindividual within the company. The problem, therefore, lies inidentifying conduct which does fall far below what can be reasonablyexpected in the particular circumstances. This, as we have discussedraises all kinds of further questions. It seems despite the toing andfroing of the bill, it does not fulfil its aims, as set out by the LawCommission. Also as Clarkson (Clarkson: 2005) points out, given thatno individual can be culpable “this insistence on identifying thesenior managers seems unduly restrictive and threatens to open the doorto endless argument in court as to whether certain persons do or do notconstitute senior managers.” This does not appear to support thenotion that the government’s intentions that this bill should prevent,in corporate disasters, companies evading liability. The bill createsmore problems than it solves.
It seems unjust that the bill will not allow for individualdirectors or managers to be held to account for their actions. Asindividuals, as has been demonstrated above, such individuals wouldstill be liable to prosecution under the health and safety legislationor even for the common law offence of gross negligence manslaughter. This begs, the question of how the new law improves upon the currentsituation. Also it seems odd that individual employee can not beculpable, if such an individual takes a short cut, knowing what thelikely consequences of that short cut might be, and that he isendangering the life of another fellow employee should he not beculpable?
To conclude and answer the question whether or not corporatemanslaughter is a practical reality or a legal theory , the answer hasto be neither, because as has been demonstrated it neither works inpractice nor does it make any sense in theory.
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