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Corporate manslaughter, the need for reform
The law on involuntary manslaughter needs reform. In particular, the law on corporate manslaughter is undeniably ineffective. Discuss the existing law together with the current proposals for reform.
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.
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. This can be demonstrated by the action brought by the relatives of the victims following the sinking of the Herald of Free Enterprise . 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 . 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 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." 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 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 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" 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. Furthermore Bingham LJ did rule that he saw, "no reason in principle why such a charge (corporate manslaughter) should not be established" .
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 . 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."
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 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 case 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."
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 .
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" . 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 . 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" 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." 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 .
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.
Ashworth, A. 1999. Principles of Criminal Law. 3rd Ed. OUP
Clarkson, 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.
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