Corporate manslaughter

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Corporate manslaughter is a term in English law for an act of homicide committed by a company. In general, a legal person is in the same position as a natural person, and may be convicted for committing virtually all offences, under English criminal law. The Court of Appeal confirmed in one of the cases following the Herald of Free Enterprise disaster that a company can in principle commit manslaughter, although all defendants in that case were acquitted.

Discussion

The common law test to impose criminal responsibility on a company (known as the "Identification Doctrine") only arises where there is a "controlling mind" whose actions and intentions can be imputed to the company (that is, a person in control of the company's affairs to a sufficient degree that the company can fairly be said to think and act through him). This is tested by reference to the detailed work patterns of the manager, and the job title or description given to that person is irrelevant. But in most large companies, there is often no single person who acts as a "controlling mind", and many issues of health and safety are delegated to junior managers who are not "controlling minds".

On 6 March 1987, 193 people died when the Herald of Free Enterprise capsized. Although individual employees failed in their duties, the Sheen Report severely criticised P&O's attitude to safety, stating:

All concerned in management ... were at fault in that all must be regarded as sharing responsibility for the failure of management. From top to bottom the body corporate was infected with the disease of sloppiness.

But there was significant institutional resistance to the appropriateness of using the criminal law in general, and homicide charges in particular in this type of situation. Judicial review of the coroner's inquest persuaded the Director of Public Prosecutions to bring manslaughter charges against P&O European Ferries and 7 employees, but the trial judge ruled that there was no evidence that one sufficiently senior member of the company’s management could be said to have been reckless.

Despite its failure, the appeal following the prosecution at R. v. P & O Ferries (Dover) Ltd (1991) 93 Cr App Rep 72, confirmed that corporate manslaughter is a charge known to English criminal law, and with the revival of gross negligence as a mens rea for manslaughter, it was thought that prosecutions might succeed. But a prosecution of Great Western Trains following the Southall rail crash collapsed because no manager was also prosecuted.

Following R v Prentice (1993) 3 WLR 937, a breach of duty amounts to 'gross negligence' when there is:

indifference to an obvious risk of injury to health; actual foresight of the risk coupled with the determination nevertheless to run it; appreciation of the risk coupled with an intention to avoid it but also coupled with such a high degree of negligence in the attempted avoidance as the jury consider justifies conviction, and inattention or failure to advert to a serious risk which goes 'beyond inadvertence' in respect of an obvious and important matter which the defendant's duty demanded he should address.

The Law Commission's Report 237 on Involuntary Manslaughter 1996 [1] argues that the gross negligence formula overcomes the problems of having to find one particular officer who has the mens rea for the offence and allows emphasis to be placed on the company’s attitude to safety. This question would only arise where the company has chosen to enter a field of activity which carries a risk to others, such as transport, manufacture or medical care. The steps the company has taken to discharge the "duty of safety" and the systems devised for running its business, will be directly relevant. Although only expressed as a provisional view, it is significant that the Law Commission echoes here the recognition of corporate safety systems voiced in the Seaboard case. Thus a real tension is exposed between the paradigm of criminal culpability based on individual responsibility and the increasing recognition of the potential for harm inherent in large scale corporate activity.

A draft bill was published in early 2005, and the Queen's Speech on 17 May 2005 included a reference to an Act of Parliament to be passed in 2005/6 to widen the scope for prosecutions for corporate manslaughter. A company will commit the new offence of corporate manslaughter if its activities were managed or organised by its senior managers so as to cause a person's death and amounted to a "gross breach" of the duty of care owed to the deceased. As a fictitious person, a company cannot be imprisoned, but the penalty would be an unlimited fine.

A Corporate Manslaughter and Corporate Homicide Bill was introduced to the House of Commons on 20 July 2006.[2]

References

• The Crown Prosecution Service website provides more information at [3]
• Wells, Celia. "Corporations: Culture, Risk and Criminal Liability", (1993) Criminal Law Review 551

External link

• Draft bill and consultation paper (published by the Home Office, 23 March 2005)