Manslaughter (England and Wales)

Corporate manslaughter (England and Wales)

Corporate manslaughter is a criminal offence in English law, being an act of homicide committed by a company. In general, in English criminal law, a juristic person is in the same position as a natural person, and may be convicted for committing many offences. 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.

Theory and historical development

The common law test to impose criminal responsibility on a company only arises where a person's gross negligence has led to another person's death and (under the "identification doctrine") that person 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 there is often no single person who acts as a "controlling mind", particularly in large companies, 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 the attitude to safety prevalent in P&O, stating:

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 seven 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.

A subsequent appeal 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. However, a prosecution of Great Western Trains following the Southall rail crash collapsed because no manager was also prosecuted.

Following R v. Prentice, a breach of duty amounts to 'gross negligence' when there is:

The Law Commission's 1996 report on involuntary manslaughter found 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 that 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.

The government issued a consultation paper in 2000, proposing reforms to the law to implement the recommendations of the Law Commission. A draft Corporate Manslaughter Bill was published in March 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.

New legislation from 2008

A Corporate Manslaughter and Corporate Homicide Bill was introduced to the House of Commons by Home Secretary John Reid on 20 July 2006 to create new offences of corporate manslaughter, in England and Wales, and corporate homicide, in Scotland. Originally, the Bill proposed that the offence would require a company's activities to be so managed or organised by its senior managers as to cause a person's death, and to amount to a "gross breach" of a duty of care owed to the deceased. The requirement for the failure of management or organisation to have been "by its senior managers" was dropped in Standing Committee. The Bill also sought to abolish the common law offence of manslaughter by gross negligence so far as it applies to corporations. A juristic person cannot be imprisoned, but the penalty would be an unlimited fine as for the existing common law offence. The Bill received royal assent on the 26th July 2007, becoming the Corporate Manslaughter and Corporate Homicide Act 2007. The Act came into force on the 6 April 2008. On 15 November 2007, the Sentencing Guidelines Council issued a consultative document recommending a starting point of a fine of 5% of company turnover for a first offence with a not guilty plea, rising to 10% of turnover.

References

Bibliography

  • Clarkson, C. M. V. (1998). "Corporate culpability". Web Journal of Current Legal Issues 2
  • Fisse, B. & Braithwaite, J. (1994). Corporations, Crime and Accountability. London: Cambridge University Press. ISBN 0521459230.
  • Glazebrook, P. (2002). "A better way of convicting businesses of avoiding deaths and injuries". Cambridge Law Journal 61 405.
  • Gobert, J. (2002). "Corporate killings at home and abroad - reflections on the givernment's proposals". Law Quarterly Review 118 72.
  • — & Punch, M. (2003). Rethinking Corporate Crime. London: Butterworths LexisNexis. ISBN 0406950067.
  • Matthews, R. (2008). Blackstone's Guide to the Corporate Manslaughter and Corporate Homicide Act 2007. Oxford: Oxford University Press. ISBN 0199203210.
  • Sullivan, G. R. (1996). "The attribution of culpability to limited companies". Cambridge Law Journal 515.
  • — (2001). "Corporate killing - some government proposals". Criminal Law Review 31.
  • Wells, C. (1993). "Corporations: culture, risk and criminal liability". Criminal Law Review 551.
  • (2001). Corporations and Criminal Responsibility. 2nd ed., Oxford: Oxford University Press. ISBN 019924619X.

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