РефератыИностранный языкThThe Law On Involuntary Manslaughter Needs Reform

The Law On Involuntary Manslaughter Needs Reform

. 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

se then one is looking at the state


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

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