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Attempts to impose criminal liability for manslaughter on companies are both futile and misguided

‘Attempts to impose criminal liability for manslaughter on companies are both futile and misguided’.

Discuss

‘A company may be vicariously liable for the negligent acts or omissions of its servants and agents, but for a company to be criminally liable for manslaughter – on the assumption I am making that such a crime exists – it is required that such a crime exists – it is required that the mens rea and actus reus of manslaughter should be established not only against those who acted for or in the name of the company but against those who were identified as the embodiment of the company itself’. Per Turner J in P & O European Ferries (Dover) Ltd 1991 93 Cr App Rep 72[1]

Manslaughter has traditionally been the one offence at common law in which negligence is expressly recognised as a sufficient basis of liability. Defining the precise degree of negligence required has always been problematical, and ultimately the question, being one of degree, has been one for the jury.

Lord Hewart CJ in Bateman (1925) 19 Cr App R 8, laid down a test for establishing negligence:

The facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving of punishment.

English law recognises that a person can be held responsible for the manslaughter of another where he owed that other a duty of care, that he breached that duty by omission and that in consequence that other died. The difficulty lies in determining those at fault when the duty of care was held by a company, for example, where a number of passengers board a train, the company (i.e. Rail Track or Connex) has a duty of care for the safety of such passengers.

It should be noted that, in terms of causation, it is enough that the accused’s act or omission contributed significantly to the death or was a substantial cause of the death. Therefore, if gross negligence is shown then it is sufficient if it was a substantial cause of death.

To summarise, in order to prove manslaughter by gross negligence the following must be shown; That a duty of care was owed to the deceased; That there had been a breach of that duty; That the breach had caused, significantly contributed to or had been a substantial cause of the death; That the negligence was such that it should be judged criminal.

In consequence of the decision of the House of Lords in R v Adomako [1995] 1 A.C. 171 it can be said that there are two classes of involuntary manslaughter, namely, "unlawful act" manslaughter and manslaughter by gross negligence involving breach of duty. It is the latter, which we are assessing at this time.

The ordinary principles of the law of negligence apply to determine whether the defendant was in breach of a duty of care towards the victim. On the establishment of such breach of duty the next question is whether it caused the death of the victim, and if so, whether it should be characterised as gross negligence and therefore a crime; it is eminently a jury question to decide, whether, having regard to the risk of death involved, the defendants conduct was so bad in all the circumstances as to amount to a criminal act or omission.

In seeking to assist juries with the meaning of gross negligence judges’ have often referred to the term ‘reckless’.

In, R v Lidar [2000] 4 Archbold News 3, CA, ‘it was said that in a case of conscious risk taking, it was appropriate to direct the jury by reference to recklessness; and that what has to be proved is an obvious risk of serious harm from the defendant’s conduct, objectively assessed, and an indifference to that risk on the part of the defendant, or foresight thereof plus a determination nevertheless to run it.’[2]

Lord Mackay said that a judge is free to use the words reckless in its ordinary meaning as part of his exposition of the law if he deems it appropriate in the circumstances of the case. The Lord Chancellor said that the ordinary connotation of recklessness was expressed with complete accuracy in R v Stone and Dobson [1977] Q.B. 354.

‘it is...that indifference to an obvious risk and appreciation of such risk, coupled with a determination nevertheless to run it, are both examples of recklessness...what the prosecution have to prove is a breach of...duty in circumstances that the jury feel convinced that the defendant’s conduct can properly be described as reckless. That is to say that a reckless disregard of danger to the health and welfare of the infirm person mere inadvertence is not enough. The defendant must have been proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it.’[3]

An example of such recklessness can be seen in the Zeebrugge ferry capsize, where the rear door remained open during transit and many were killed as a consequence.

In R v Stone and Dobinson [1977] 2 All ER 341, CA, Stone and Dobinson had Stone’s elderly sister (Fanny) living with them; when she became incapable of looking after herself they neglected to care for her and she died. Stone and Dobinson were convicted of manslaughter; on the evidence, the jury were entitled to find as a matter of fact that Stone & Dobinson had taken on themselves the duty of caring for Fanny, and they failed in that duty.

A duty of care is assumed also where a company has taken on the responsibility of taking safety precautions on behalf of their customers.

In R v Kahn and Kahn it was said that it is for the judge to decide whether the facts are capable of giving rise to a duty of care, and for the jury to decide in the light of the Judge’s direction whether there was a duty of care.

It must also be proved that the defendant’s negligence was the cause of the victim’s death, and that had the defendant exercised proper care the death would not have occurred

R v Pitts (1842) C.eMar. 248 and R –v- Curley, 2 Cr. App. R. 96 are both authorities for the proposition that if gross negligence is shown, then it is sufficient if it was a substantial cause of death.

There have been many publicized disasters recently, where liability has come into question including: the Clapham rail crash, Hillsborough, the King’s Cross fire, the Lockerbie aircraft bombing, Marchioness river-boat collision, Piper Alpha oil platform explosion and the aforementioned Zeebrugge ferry capsize. Many people were killed in these accidents and therefore it was necessary to determine where the blame lay. In many of the above cases, it was established that the blame lay with the companies behind those who were to blame. Some were found to be vicariously liable for the actions or omissions of their employees. Some however, were not convicted of such offences, as difficulty was found in proving liability. There have in fact only been two successful prosecutions for corporate manslaughter.

It is often expressed by the tabloids and the families of those injured or killed in such disasters that the law is inadequate as it currently stands. Associating blame with such an incident is necessary in order to establish liability. It is however difficult to ascertain who those at fault are, as it is not an individual but a company with many facets.

‘It has a brain and nerve center which controls what it does. It also has hands, which hold the tools and act in accordance with directions from the center. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such.’ Per Lord Denning in HL Bolton (Engineering) Co Ltd v TJ Graham and Sons Ltd (1957)[4]

Many attempts have been made throughout the years to impose criminal liability for manslaughter on companies. Some have succeeded and some have not. As with most elements of the law, there are problems with the offence of Corporate Manslaughter. It is difficult to ascertain who specifically is at fault and whether the company for whom they are acting is vicariously liable.

Proving causation is also problematic in that it is the individual acting for the company, and not the company itself who caused the death or incident to occur (assuming that causation has been established between the incident and the individual in question).

In Tesco Supermarkets Ltd v Nattrass (1972) AC 153) it was decided per Lord Reid that although proper steps had been taken to prevent the offence taking place, their argument that it was ‘another person’ was not valid, as the other person was a branch manager of Tesco’s and therefore ‘his acts were those of the company’[5] to paraphrase, he was acting on behalf of the company and therefore the company was acting.

On appeal to the House of Lords, the conviction was quashed on the basis that a third party defence was available ‘as the branch manager was another person being the ‘hands’ and not the ‘brains’ of the company...accordingly, his acts or omissions were not those of the company’.[6] This ruling had been severely criticized, however, it has not yet been overruled.

Further, Rose LJ stated in AG’s Reference (No 2 of 1999) [2000] 1 Cr App R 207 (The Southall case) that ‘unless an individual’s conduct, characterisable as gross criminal negligence, can be attributed to the company the company is not... liable for manslaughter’.[7]

However, Michael J Allen asserts that Rose LJ had missed the point in Adomako (Ante) that Manslaughter is not only an offence of recklessness but also negligence and therefore, had he applied this rule, the result may have been different.

‘Recently both the public and the courts have been seeking individual legal liability at managerial level for health and safety negligence. In 1992 Rodney James Chapman became the first company director to be disqualified for a health and safety offence under section 37 of the 1974 Health & Safety at Work Act. In 1995, a demolition company director, Roy Edwin Hill, was the first director ever to be given an effective jail sentence for breaking health aid safety regulations. His company had demolished a building in December 1994 without attempting to prevent the spread of asbestos dust. In the Lyme Regis canoeing deaths, the boss, Peter Kite, was jailed for three years for manslaughter and the company, OLL, was fined £60,000. ‘[8]

Corporate Killing is a proposed offence which the government have considered passing since the report of the Law Commission in 1996. With this offence, ‘ the prosecution would have to prove that the death was caused by failings in the organisation of the companies activities such as to amount to neglecting the health and safety of its employees or those affected by its actions. The fault element...would be that the company’s conduct fell far below what could be expected. There would be no requirement to prove that the risk was obvious or that the company was capable of appreciating it’.[9]

‘The Law Commission states in its report that it sees no reason why companies should continue to be effectively exempt from the law of manslaughter, and that they should be liable to prosecution for a homicide offence if they cause death through conduct which is sufficiently blameworthy. However, the Commission stresses that mere carelessness should not be sufficient to give rise to such liability.’[10]

The Law Commission has made the following proposals in order to rectify such problems:

‘There should be a specific offence of "corporate killing", broadly comparable to "killing by gross carelessness" on the part of an individual.

A corporation should be liable to prosecution for corporate killing if a) a "management failure" by the corporation results in a person’s death, and b) that failure constitutes conduct falling far below what can reasonably be expected of the corporation in the circumstances.

Where a company is convicted of corporate killing, the judge should have power a) to fine the company an unlimited sum; and b) to order it to remedy the cause of the death.

The offence should apply a) to foreign corporations operating in this country; and b) to any death resulting from an injury sustained in England or Wales, in UK territorial waters, on a British ship or vessel, on a British-controlled aircraft, or on certain offshore oil and gas platforms.’[11]

It can therefore be seen that steps are being made within the Criminal Justice System to rectify problems with the law. However, are these steps enough to prevent such incidents from occurring?

‘Clearly, the law does not provide sufficient protection either at a personal level or from the overall standpoint of our society. Hence there is a clear need for the Government to accept the responsibility to ensure that the necessary changes in the law are enacted’.’[12]

Disaster Action, has suggested its own remedies for the current law on this issue. They feel that the proposals put forward by the Law Commission would rectify the law to an extent but have not gone as far as they could have done in the circumstances.

‘Despite the useful proposals of the Law Commission, it is Disaster Action’s view that the law must encompass a much wider role for corporate responsibility. For this purpose the following recommendations are made:

(a) The criminal justice system must treat deaths, which take place in circumstances where a company or a company officer might be guilty of a serious offence in the same way as traditional crimes of violence involving individuals.

(b) In formulating legal reforms, proper consideration must be given to the deficiencies of the investigation and prosecution policies.

(c) In the context of the crime of manslaughter alleged against senior company officers, legally binding directors duties need to be defined.

(d) The law of manslaughter relating to individuals is confused and the principle of corporate liability is highly problematical. Reforms are essential.

(e) A court needs to be able to consider whether the company as a whole has acted with gross negligence rather than just considering the actions of a senior company officer.

(f) The sentencing of a company found guilty of manslaughter needs to be reviewed. E.g. the use of ‘corporate probation’, as used in the U.S.A., should be considered.’[13]

As can be seen, the issue of corporate manslaughter is one inducing some controversy. It is agreed, however, that the law as it stands is not satisfactory. Since there have only been two successful prosecutions in relation to such an offence, it could be argued that it is currently futile to pursue such a conviction, as it is almost impossible to prove liability.

If the law were to change as the Law Commission suggests, the position will be quite a different one. Of course, not everyone will be satisfied with the reforms, however, as previously suggested, most elements of the law are questioned as to their suitability and efficiency.

At present, attempts to impose criminal liability for manslaughter on companies are perhaps futile and misguided, however, this position had not gone unnoted and steps are being taken to improve it.


[1] Criminal Law Diana Roe page 251

[2] Archbold. 19-110

[3] Archbold: 19-110

[4] Criminal Law. Diana Roe. Page 252

[5] Textbook on Criminal Law. Allen. Page 245

[6] Textbook on Criminal Law. Allen. Page 245

[7] Textbook on Criminal Law. Allen. Page 247

[8] Corporate Manslaughter – Reforming the Law. Page 3 of 11. Sub-heading: The law is inadequate

[9] Criminal Law. Elliott and Quinn. Page 87

[10] Law Commission Report 237 March 1996 (Law Commission Web Site) pages 1 of 3

[11] Law Commission Report 237 March 1996 (Law Commission Web Site) pages 1-2 of 3

[12] Corporate Manslaughter – Reforming the Law. Page 3 of 11. Sub-heading: The law is inadequate

[13] Corporate Manslaughter – Reforming the Law. Page 10 of 11. Sub-heading: Disaster Actions Recommendations



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