. In Particular, The Law On Corporate Manslaughter I Essay, Research Paper
Public
confidence in the law and the judiciary has been seriously affected in the last
few years with a number of disasters where the law of manslaughter, as it
currently stands in England and Wales has failed to lead to any prosecutions.
There has been the growing perception that the law dealing with corporate
manslaughter is ineffective following public inquiries, which have found
serious fault with, and been highly critical of various corporate bodies. It
would seem that as companies grow larger and have more power so there should be
at the same time an increase in the responsibility that these companies have
towards society in general. Therefore just as individuals in society owe a duty
to each other not to unlawfully kill each other so should companies owe that
duty to society as well. [1]Society?s
perception of large companies is such that they are seen as the correct body
which must be blamed rather than individuals when disasters happen.[2]
This can be demonstrated by the action brought by the relatives of the victims
following the sinking of the Herald of Free
Enterprise[3]. The
relatives in this case were seeking primarily the prosecution of P&O and not of the individual
employees involved with the disaster.Under the law in
England and Wales as it currently stands, the method by which companies are
held criminally responsible for manslaughter is that of the doctrine of identification[4].
This involves having to identify someone who is sufficiently senior within the
company who can be said to represent the ?mind and will? of the company. If
this person commits a crime within the course of their employment, that crime,
and the mens rea of it can then be
attributed to the company, which becomes identified with it and can therefore
be held liable. Where this occurs it will then be possible to prosecute both
the individual concerned and the company.There has been
some difficulty by the courts in deciding at exactly what level this directing
mind should be in the company. In the Meridian Global Funds Management Asia Ltd. V
Securities Commission [5]case
the Privy Council held that not every case should be forced into a ?single
formula? of the ?directing mind and will? type but that the way the particular
offence is committed is important. In this case it was held that the investment
manager was of a sufficient senior level to be held responsible. Lord Hoffman
seemed to be arguing that there should be a wider scope for responsibility,
with the main question being, ?whose act (or knowledge, or state of mind) was
for this purpose intended to count as the act of the company?? This would seem
to extend the traditional view of the doctrine of identification, with the idea
being that this particular person was authorized to do this job, and therefore
their acts can be attributed to the company. Each case becomes therefore ? a special
rule of attribution for the particular substantive rule.?[6]
Therefore a person who before could not have been said to be senior enough in
the company could now possess the necessary mens
rea for the crime of corporate manslaughter. However the problem still
remains that a particular person has to be identified within the company whose acts and knowledge can be
attributed to the company as a whole. Often it will also be shown that fault
did not lie with a particular individual but rather with the company itself, in
the form of procedures or safety measures which were not implemented. In the Herald of Free Enterprise case[7] the fact that the prosecution failed was that there was no individual in P&O who held responsibility for
safety and there were no safety policies in place. The Sheen Report[8]
made it clear that the fault for the disaster lay with company policies, or the
lack of them, and that the company was at fault for failure to give clear
safety instructions to its employees. Thus in cases where there is clear
evidence of corporate failure, and a ?disease of sloppiness?[9]
infecting the entire work force, the doctrine of identification prevents any
prosecution from taking place in criminal law, as a single individual (or
individuals) will still need to be shown as having the necessary acts and
knowledge that can be attributed to the company. It is important to note
however that despite the failure of the P&O
case, as expalined above, that Turner J did rule that the indictment for
manslaughter could stand and that future cases should be decided on a case by
case basis.[10] Furthermore
Bingham LJ did rule that he saw, ?no reason in principle why such a charge (corporate manslaughter) should not be
established?[11].More recently
following the Southall Rail Crash
(September 1997) in which seven people died, the Court of Appeal held that the
traditional view regarding the use of the principal of identification remains
the means of bringing about prosecutions for corporate manslaughter[12].
During the trial of Great Western Trains
the trail judge Scott Baker J held that:?? It is a condition precedent to a conviction for manslaughter by
gross negligence for a guilty mind to be proved; and where a non-human
defendant is prosecuted, it may only be convicted via the guilt of a human
being with whom it may be identified.?[13]As a result,
even though a ?serious fault of senior management? had been identified, it was
not possible for the prosecution to prove their case, as no single person could
be found of sufficient seniority (within the identity doctrine) who was
responsible for the ordering of trains to run where safety was lacking. The
Attorney-General sought therefore to have the current position clarified with
two questions being referred to the Court of Appeal, based upon the trial
judges ruling:i.
Can a defendant be properly convicted
of manslaughter by gross negligence in the absence of evidence as to that
defendant?s state of mind? and; ii.
Can a non-human defendant be convicted
of the crime of manslaughter by gross negligence in the absence of evidence
establishing the guilt of an identified human individual for the same?The Appeal Court
agreed with the first question, which meant that the second answer had to be a
negative in that the prerequisite guilt of state of mind had to be established,
with it then only becoming attributed to the company. The Court held that there
had to be an ?identifiable individuals conduct, characterisable as gross
criminal negligence? which then could be attributed to the company. It is however
confusing since the Court also followed Adomako [14]with
the ?objective? gross negligence
test, (with no subjective guilt of mind needing to be proved on behalf of the
defendant) mentioned in the obiter.
It would seem that in order for a persons conduct to be seen as being gross
criminal negligence, one needs to look at the facts that the individual knew or
perhaps was not aware of. If this is the ca
of mind of the particular individual and to what degree their own knowledge (or
lack of) was of any importance. It would seem that as far as corporate
manslaughter is concerned the crime is not one of strict liability, as there
has to be a ?directing mind? with the necessary mens rea, dependant on individual culpability.It is an area in
which there is some confusion, with the trial judge and the Court of Appeal
coming to different conclusions on what the necessary conditions would be to
establish individual culpability. What seems to be at issue is the use of the
terms describing the state of mind
and mens rea of the defendant. The Court of
Appeal therefore has confirmed the doctrine of identification and restated the
traditional view that:?For a company to be criminally liable for manslaughter it is
required that the mens rea and the
actus reus of manslaughter should be established? against those who were to be
identified as the embodiment of the company itself.?[15]Following on the
Meridian decision it seemed that for
time prerequisite of a ?directing mind? may have begun too shift significantly,
however this would now not seem to be the case. It seems that Meridian has been distinguished from
other cases in so far that it related to the interpretation of a statutory
provision, yet the Court has rejected that it indicated any move away from the
traditional position. In fact the Court argued that the decision relied on the
identification principle and that while the person identified as the ?directing
mind? was not as senior as expected, he was nevertheless at management level[16].
From what has
been discussed above, it is evident that there are problems with prosecuting a
company where there has been management
failure in the prevention of causing death or injury. The first difficulty
is in the identification of an individual who is seen as being the ?embodiment
of the company? and more importantly, ? who is culpable?[17].
Secondly it may not be possible to prove the necessary mens rea of the individual (or individuals) in the particular case
which needs to be attributed to the company before the company can be held to
be criminally liable. The notion of management failure forms the focus of
the proposals submitted by the Law Commission and accepted by the Government.
The offence of corporate manslaughter (renamed corporate killing) would therefore be committed if there was a
?management failure? falling far below what can reasonably be expected of the
corporation in the circumstances? which in turn lead to a persons death[18].
The most important concept here is that of the notion of management failure, which refers to the acts of people in the
company, failing to ensure the existence of structures (or policies) that would
prevent death or injury occurring to employees or members of the public. This
offence does not therefore require reference to the common law notion of mens
rea, in its attempt to deal with the unique nature of corporate killing, by
focusing instead on the manner in which the company is organized and the
policies implemented (or not). There is therefore no longer the need to
identify particular individuals and their actions as has been and is still the
present situation. These arguments that a corporate bodies should be held
liable are largely based upon ?public policy?[19]
as stated at the beginning of the essay.?An immediate problem with the proposals as
they stand is that in some respects similar arguments to those that are used at
present could be raised in defense of a company. Which policies or management
failures form part of that particular company? This is especially be true of
large multi-national companies or corporations consisting of smaller companies
on the ground. It is however widely acknowledged that the proposals are broadly
to be welcomed despite problems with detail as they could help to clarify a problematic
area of law.There is also
the argument that the creation of a separate crime is not always in the best
public interest as opposed to creating a ?different ground of liability? and
the need to consider corporate liability more widely in general.?[20]?Ashworth
argues that focusing too much attention on the punishment for past wrongdoing
is not constructive for society in general as, there is a greater need for
prevention[21].What is evident
is that liability does need to be imposed where there has been some disaster
brought about through blatant failure on the part of a company to ensure the
safety of the public and its employees. The current law as has been
demonstrated is far from clear or uniform in its approach to dealing with the
question of corporate manslaughter. There does however need to be a degree of
caution however that criminal liability is not imposed simply as a result of
extraordinary events or a public desire for vengeance, as the maxim ?hard cases
make bad law? elucidates. BibliographyAshworth, A. 1999. Principles of Criminal Law. 3rd Ed. OUPClarkson, CMV. 1998. Corporate Culpability. Journal of Current Legal Issues. London:
Blackstone Press Ltd.Department of Transport (1987), The Merchant Shipping Act 1894, mv Herald of
Free Enterprise, Report of Court No 8074 (Sheen Report). London: HMSO.Reforming the Law on Involuntary Manslaughter: The Governments
Proposals. (2000). The Home Office. London: HMSO.Smith and Hogan. 1999. Criminal Law. 9th
Ed. London. Butterworths.Smith and Hogan. 1999. Criminal Law, Cases
and Materials. 7th Ed.
London. Butterworths. The Law Commission No 237. 1996. Legislating the Criminal Code, Involuntary
Manslaughter. London. HMSO. [1] Reforming the Law on
Involuntary Manslaughter: The Governments Proposals. (2000). The Home
Office. London: HMSO. [2] Smith and Hogan (1999, p. 282) [3] R v P&O European Ferries (Dover) Ltd. [1990] 93 Cr App Rep 72,
Central Criminal Court [4] Legislating the Criminal
Code: Involuntary Manslaughter Report No. 237 (1996) [5] [1995] 3 All ER 918 [6] ibid.(Lord Hoffman at p.
507) [7] See above. [8] Department of Transport (1987), The
Merchant Shipping Act 1894, mv Herald of Free Enterprise, Report of Court
No 8074 (Sheen Report). London: HMSO. [9] Ibid. [10] R v P&O European Ferries
(Dover) Ltd [1990] 93 Cr App Rep 72, Central Criminal Court [11] R v HM Coroner for East Kent,
ex parte Spooner [1989] 88 Cr App R 10, p.6 [12] AG?s Ref. (No. 2of? 1999) [2000] All ER (D) 178 [13] R v Great Western Trains Co
(GWT) [1999] Unreported, Smith &Morgan (1999), p.282 [14] R v Adomako [1994] 3 All
ER 79 [15] Bingham LJ, R v HM Coroner
for East Kent, ex parte Spooner [1989] 88 Cr App R 10, p. 16 [16] Rose LJ, AG?s Ref. (No.
2of? 1999) [2000] All ER (D) 178 [17] Reforming the Law on
Involuntary Manslaughter: The Governments Proposals. (2000). The Home
Office. London: HMSO. [18] Legislating the Criminal
Code: Involuntary Manslaughter Report No. 237 (1996), c. 4 (1) [19] Smith & Hogan (1999), p.283. [20] Ashworth, A. 1999. Principles
of Criminal Law. 3rd Ed. OUP. p. 123. [21] Ibid. p. 123-4