Corporate Manslaughter - Shipping Safety
The Herald of free enterprise was followed by so many deaths resulting from shipping accidents like the Piper Alpha disasterand a few others. There was also the general feelings that enough was not been done in terms of safety. As a response to this, in 1996 the law commission's report “Legislating the criminal code: Involuntary Manslaughter”, included proposals for a new offence of corporate killing that would act as a stand alone provision prosecuting companies to compliment offences primarily aimed at individuals. In effect, if we consider manslaughter as such, it is really geared towards individuals and is stretched into corporations by the concept of the directing mind and will. So what the law commission seem to propose is the creation of a new stand alone offence that is exclusive to companies while the traditional offence is reserved for individuals.
Supporting this law commission's position, the Labour party when it came into power in 1997 pledged to introduce an offence along the lines of corporate criminal liability. To make good this pledge, “in 2005 the Corporate Manslaughter bill was” publicised. This was subsequently followed by an updated Corporate Manslaughter and Corporate Homicide Bill introduced in 2006.
This very important piece of legislation took very long to get to parliament and the frustration of waiting for it was expressed by Pamela Dix, executive director of Disaster Action, a charity formed following the 1987 Zebrugge ferry crash, who said ‘The potential implication of losing this bill is incalculable. We need a law that will act as a deterrent. It's now more than 20 years since Zebrugge, we've waited a long time for this law. There has to be moral leadership shown on this issue'.
Corporate manslaughter has always been open to two or more interpretations; while some consider it to fall outside mainstream crime others without mincing words say it is murder. I will however for the purpose of this dissertation tow the line of Croall and consider it as crime.
This area of law is highly complex and fragmentized; as such the sequestration of the topic has been avoided, thus allowing for a sequential structuring of the chapters to make room for clarity. Attempt has also been made to avoid the use of some confusing terms like accident, corporate killing and corporate murder which are synonymous with corporate manslaughter. The term corporate manslaughter shall therefore be used in this work, to refer to workplace death resulting from gross negligence and nothing more.
1.1 Aims and Objectives
This work aims at an analysis of the 2007 corporate manslaughter and corporate homicide Act, to show whether or not the act will overcome the problems with the old law as regards prosecution of companies especially shipping companies under the offence of corporate manslaughter where there has been apparent individual or collective management failings at senior level that results to death. Its objective is to attempt answers at questions such as:
- Why are workplace deaths presumed accidental?
- Why couldn't prosecutors succeed with the old legislation?
- Has this problem with the old legislation been addressed in this new legislation?
- What are the likely problems with this new legislation?
- Are shipping companies immune to prosecution?
- Why is the Act built on key aspects of the common law offence of gross negligence manslaughter?
1.2 Chapters & Structure
Chapter one provides an overview of this dissertation, stating the need for considering the issue of manslaughter and the new Act. It also considers the structure and methodology of the work. Chapter two focuses on some general issues relating to corporate criminal liability and historical events which necessitated the call for a new law on corporate manslaughter. Some issues to be addressed here includes: the definition of manslaughter, gross negligence and its application, the theory of identification, the herald of free enterprise, the process of aggregation and the two-fold response. Chapter three considers a case study of corporate manslaughter in the case of Simon Jones and the Solway Harvester case Attempt shall be made at X raying the death, and the investigations that followed as well as the trial which resulted from the investigations. Problems associated with prosecution shall also be addressed. Chapter four shall be dedicated to analysing the 2007 corporate manslaughter and corporate homicide Act. It shall consist of a brief background history of the Act, problems associated with building it on key aspects of the common law offence of gross negligence manslaughter, the process of adducing evidence independent of shipping companies to be prosecuted, problems of lifting the corporate veil, and that of identification in relation to small firms. Chapter five shall be a re-statement of the issues addressed in chapter four and a conclusion.
Every chapter treated shall be concluded with a summary which identifies the key issues and ingeminates them for emphasis sake. While the conclusion shall extract the key issues treated in every chapter and harmonise them with my personal opinion and recommendations for reform.
The regulatory context of corporate manslaughter has under gone a major renovation. It is therefore imperative at this time to assess and address the implications these changes could impress upon the prosecution of Corporations.
Several researches and debates have considered this issue of corporate manslaughter under Common Law and previous legislation where Corporations have remained untouchable, as it has been extremely difficult for prosecutors to successfully prosecute companies for the offence of manslaughter. The main reason for this difficulty has been the requirement for prosecution to show a causal link between a grossly negligent act or omission by person or persons considered to be the controlling mind of the company and the actual fatality. The difficulty to show this level of proof has therefore resulted to very few convictions of companies for manslaughter. The 2007 Corporate Manslaughter and Corporate Homicide Act looks to change the existing common law of corporate manslaughter making it easier to successfully prosecute corporations for manslaughter. The act does not seem to have proposed any changes to the regulatory procedure of corporate manslaughter, which remains the duty of the combined efforts of the HSE, police and CPS; neither does it make the penalties any stricter. It however intends to remove obstacles that have abinitio protected corporations from prosecution. It is also believed that “The new law will make it easier for prosecutions to succeed, particularly against large organisations. This is primarily owing to the fact that under the new law the prosecution will not have to identify the controlling mind behind the organisation's activities. Instead the prosecution will focus on the conduct of the senior management, both individually and collectively”
This work therefore, intends to show whether or not this new Act will overcome the problems with the old law, so that from the 6th of April 2008 when it came into operation we shall see many more successful prosecution of companies especially shipping companies under the offence of “Corporate Manslaughter” where there has been apparent individual or collective management failings at senior level that results to death.
To achieve the aims and objectives set out in this dissertation, the grounding of the study shall be carried out through a literature based research. Information contained herein shall be gathered from cases (law reports), books, journals, and electronic sources (audio visual material).
There is also the employment of a case study technique which utilises the transcript of the case/ cases under review to expose the problems of corporate manslaughter as they were before the appearance of the 2007 corporate manslaughter and corporate homicide Act.
Case study research method “is an empirical inquiry that investigates a contemporary phenomenon within its real-life context; when the boundaries between phenomenon and context are not clearly evident; and in which multiple sources of evidence are used.” It is very useful to research as it helps us to better grasp complex issues and even broaden experience or strengthen that which is already known through former research. It involves the ‘examination of an instance in action', “the study of a bounded system (the case) selected as an instance drawn from a class, or alternatively, the study of the case as a bounded system issues to be indicated, discovered or studied. The case is usually an entity of intrinsic interest and although similar to others, it has a distinctive internal unity of character. The milieu or context within which it is embedded is highly important to the overall study, as interactions between it and the focus of observation lead to richer description, and hence better understanding”.
The product of every “case study are different kinds of generalisation: from the instance to a class, from the instance to a multiplicity of classes, or about the case itself”.
2 The Concept of Manslaughter
“… of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions.” While in the eyes of the law, “Murder is unlawful homicide with malice aforethought. Manslaughter is an unlawful homicide without malice aforethought.”
Under the “common law, all unlawful homicides which are not murder are manslaughter. There are now numerous statutory forms of unlawful killing including, for example, causing death by dangerous driving.”The term covers several kinds of homicide. “This is an inevitable consequence of it being limited in scope only by murder at one extreme and accidental killings at the other.” In spite of several acts recognised in law as manslaughter, it is conventional and some worth imperative to categorise manslaughter in to two forms – voluntary and involuntary. This differentiation is such that with voluntary manslaughter a person could have the mens rea and actus reus for murder, but his act cannot be held to be murder, but a less severe form of criminal homicide. Common law accepts voluntary manslaughter to have occurred only if the killing was the direct result of provocation. However, the homicide Act made provocation a statutory defence along side two other categories of voluntary manslaughter, providing that “Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.”
Involuntary manslaughter on the other hand is made up of all sorts of homicide which although are not maliciously pre-planned acts, are still not lawful under common law. It is certainly not surprising, that the act needed to establish involuntary manslaughter comes in divers form. “And as the limits of malice aforethought are uncertain, it follows inevitably that there is a corresponding uncertainty at the boundary between murder and manslaughter.” For sure, the problem does not stop there as there exists “another vague borderline between manslaughter and accidental death.”
2.1 Stages of Evolution of the Gross Negligence Test in Manslaughter
The Journey started with the Bateman's case where a doctor lost a patient during child birth and the Court of Appeal held for the very first time, that gross negligence was the test for manslaughter. Lord Hewart CJ posited in this case that:
“ in order to establish civil liability, the plaintiff must prove (in addition to pecuniary loss caused by the death) that A. owed a duty to B. to take care, that that duty was not discharged, and that the default caused the death of B”. Furthermore, to secure a manslaughter conviction, “…prosecution must prove the three things above mentioned and must satisfy the jury, in addition, that A.'s negligence amounted to a crime”. He goes on to add that “‘--- in order to establish criminal liability 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 punishment.'”
This gross negligence test for manslaughter was later affirmed by the House of Lords in the 1937 case of Andrewswhere the court convicted a defendant for manslaughter following death which resulted from the defendants dangerous and reckless driving of a car.
Then came the case of Lawrencewhere a motor bike driver was convicted because he caused death through reckless driving. In this case, the law Lords held that the mens rea of the offence presents itself as the driver drove in such a way that he never gave thought to the risk or even when he recognised that the risk exists he carried on with utter disregard. Here, the jury was to determine whether the risk was obvious as well as serious. The standard to be used to determine the seriousness of the risk is that of an ordinary careful motorist.
The 1983 case of Seymour quickly followed Lawrence. In this case, a lorry driver attempted to push his girlfriend's car out of the way with his lorry, and ended up crushing her in the car. Convicting him for manslaughter by reckless driving, the House of Lords held that Caldwell recklessness as to some harm was the required mens rea for reckless manslaughter.
Furthermore, in 1985 the collision in Hong Kong harbour between two hydrofoils saw the Privy Council applying the new form of reckless manslaughter. The Council held in the case of Kong Chuck Kwan that the position of the court in Lawrence which was upheld in Seymour applies in this case. The Council goes on to posit that the test in the earlier cases was comprehensive enough and useful for every involuntary manslaughter case which falls outside the domain of constructive manslaughter.
The 1993 case of Prenticehowever, attempts to move away from this position in Lawrence and Seymour by showing that “a breach of duty amounts to ‘gross negligence' when there is: … (a) Indifference to an obvious risk of injury to health; (b) actual foresight of the risk coupled with the determination nevertheless to run it;(c) 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.”
Lawrence and Seymour were finally jettisoned by the House of Lords in the case of Adomako where an anaesthetist failed to notice that the tube in a ventilator supplying oxygen to his patient has been disconnected. The law Lords upheld an earlier judgement stating that the anaesthetist was properly convicted of involuntary manslaughter resulting from breach of duty.
This principle in Adomako was followed in the 1999 case of Lidarwhere the victim was half leaning on the defendants car and arguing with him when he drove off and caused the victim to be crushed by the rear wheel of the car. The Court of Appeal convicting the defendant of manslaughter stated that to be liable for manslaughter, the defendant must have not only foreseen a risk of serious injury or death occurring, but must have also assessed the risk as highly probable to occur.
2.2 Why Extend Manslaughter to Corporations?
Over time the criminal law has coped with addressing the wrong acts of individuals who are perceived to be independent and self-directed, having the capacity to think for themselves, and the free will to choose to do right or wrong. Consequently, the choices they make can attract condemnation where they are wrong choices and may also attract praises if they are good. Contrived systems like corporations are not accommodated by this concept of responsibility.
Life in the world we live in is impacted upon in several ways by companies. The cloths we wear, the food we eat, our drinks are all processed by companies, so in a way we are dependent upon them. However, in cause of getting the food, clothes and drinks to us, they one way or the other pollute our environment which in turn endangers our life. It is also possible that before their products get to us some of the people involved in the production of the products would have sustained injuries, which may result to their death or even incapacitate them. It is equally very possible for people to come to harm after eating the food, or wearing the clothes or even drinking the drinks produced by a company as seen in the case of R v F. & M. Dobson, where the company producing ‘Cock-ups', a nut toffee sweet supplied a ‘Cock-ups' which a lady put into the mouth only to realise it was not a sweet, but a Stanley knife blade coated with chocolate. The question then is can these companies be made criminally liable like the individuals who when they make the wrong choices are held accountable?
A “company is for legal purposes an independent person having an existence separate from that of the human beings who own, manage and serve it”. Consequently, on strict liability it can be held criminally liable where it commits a criminal offence. However it is very unlikely that a company could commit offences which require human action like bigamy and sexual offences.
“While companies have long been held liable for a wide array of offences, such as pollution offences and offences involving financial irregularities, the whole issue of corporate criminal liability has become extremely high-profile and controversial in cases where the activities of companies have led to the death or injury of workers or members of the public”. Some of these corporate activities which resulted to deaths includes: the Zeebrugge disaster of 1987 which saw the capsizing of the ferry, Herald of Free Enterprise, and the loss of 192 lives; there was also the Kings Cross fire disaster which took 31 lives; and the Alpha Piper disaster of 1988 which resulted into 167 deaths. Lives were also lost in some catastrophic train crashes like the Southall, Paddington and Hatfield crashes which claimed several lives. While these train mishaps were “accompanied by mounting accusations of incompetence and complacency and poor safety management by the rail companies”involved inquiries into earlier disasters “identified “unsafe practices”, grave shortcomings” and “significant flaws” in the management's approach to safety as causes”.
2.3 Corporate Manslaughter in Ship and the Application of the Gross Negligence Test
Corporate manslaughter takes place where there is an unsafe ship or an unsafe operation in a ship and ultimately one way or another it leads to death.
Formerly before there could be a manslaughter charge, there has to be recklessness – recklessness as to whether someone was killed or not. However, in 1994 the case of Adomako changed all of this.
In cases of manslaughter by criminal negligence involving a breach of duty, it is sufficient direction to the jury to adopt the gross negligence test without reference to the test of recklessness as defined in the Lawrence case or as adapted to the circumstance of the case. So from this point of view, it has gone from recklessness to gross negligence as being the test. This basic position was amplified by Lord Mackay who said:
“... [I]n my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the [deceased], was such that it should be judged criminal.”
To determine negligence and gross negligence, the following factors outlined by the Law Lord have to be considered:
- the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred;
- The jury will consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.
The answer therefore is, “In cases of manslaughter by criminal negligence involving breach of duty, it is sufficient direction to the jury to adopt the gross negligence test set out by the court of Appeal…it is not necessary to refer to the definition of recklessness in Reg .v. Lawrence… although it is perfectly open to the trial judge to use the word ‘reckless' in its ordinary meaning as part of his exposition of the law if he deems it appropriate in the circumstances of the particular case.”
Primarily, Lord Mackay was positing this in relation to individuals – an individual who owes a duty of care or in a position of gross negligence. But the fact remains that most shipping situations involve ships that are owned by corporations and not individuals. So it becomes quit imperative for us to proceed to consider what the situation really is in relation to corporations.
Until recently it has not been possible to convict the corporation itself for criminal negligence, unless it is found that the individuals who can be identified as the ‘directing mind and will' of the corporation, are themselves guilty of gross negligence. So corporations under pre-existing law cannot be prosecuted per se, what has to be done is to identify key individuals who can be said to be the directing mind and will of the corporation and see if they had been guilty of gross negligence. This directing mind and will as seen in the Tesco case will be some sort of senior individual like chairman of the board, managing director or some other senior individual who could be said to embody the company in his actions and decisions. Such a person if guilty of the offence of gross negligence could be made culpable with the company under a principle known as identification.
2.4 THE IDENTIFICATION PRINCIPLE
Over time it has been observed that the criminal law of England has always found it difficult to make companies criminally liable for blameworthy crimes. The reason for this seemingly incapacitation on the part of the law is the dedication to the personalised notions of responsibility associated with this sort of crime. “However, as company law developed the fiction of corporate personality – the idea that a company was a legal ‘person' that could sue and be sued in its own name – the criminal law did not take long to lift this fiction and superimpose it on its individualist conception of criminal liability.” Courts began to lift the veil of incorporation so as to determine whether an individual has “committed the actus reus of a crime with the appropriate mens rea.” To achieve this, the mind of a senior individual in the company is identified with the mind of the company. This was the case in the Herald of free Enterprise, which was a judicial review of the coroners decision where Lord Bingham stated that “…on appropriate facts the mens rea required for manslaughter can be established against the corporation, I see no reason in principle why such a charge should not be established.” So one can establish mens rea against a corporation by looking at the directing mind and will of that corporation. He goes on to add that: “Whether the defendant is a corporation or a personal defendant, the ingredients of manslaughter must be established by proving the necessary mens rea and actus reus of manslaughter against it or him by evidence properly relied on against it or him”. What the law lord seems to be saying here is that yes you have got to have the evidence against the individual and if that individual is the directing mind and will of the company then that is seen as evidence against the company, but what you cannot do by implication is that you can't enter a process called aggregation.
2.5 THE PROCESS OF AGGREGATION
This is simply where one uses the mens rea of several people to convict someone else. Let us assume there are 17 people working for a shipping company and these 17 people commit a criminal offence, you then conclude that the shipping company must be guilty of the particular offence. Those 17 people can only be of consequence if they are the directing mind and will of the company, but if they are merely 17 employees, then it is the 17 employees that should be prosecuted and not necessarily the company. Hence you cannot aggregate the wrongful activities of individuals and then pass it on to the company unless those individuals are the company in the sense of its directing mind and will.
In essence, a case against a personal defendant cannot be fortified by evidence against another defendant. And in the same way, the case against a corporation can only be made by evidence properly addressed to showing guilt on the part of the corporation as such. That is the process of aggregation. So the only way you can do this through the identification theory is to say the people who were grossly negligent are the senior officers and they are the company to all intent and purpose therefore the company is guilty.
This was the position of the law at the end of the Herald of Free Enterprise, and to that there were two responses.
2.6 THE TWO-FOLD RESPONSE TO THE HERALD OF FREE ENTERPRISE
There was an immediate legislative response put in place by the government to address the problems faced by prosecution in their attempt to show the guilt of corporations as regard gross negligence manslaughter. This immediate legislative response created a new statutory offence of unsafe operation under the merchant shipping Act of 1988
This response under s 31 of the MSA 1988 made the owner, demise chatterer or the ship manager of a ship upon whom responsibility for her safe operation lies at a particular time criminally liable for unsafe operation punishable upon summary conviction with fine up to fifty thousand pounds (£50,000) or on indictment with two years imprisonment. To this extent we got a new offence of unsafe operation which although is no more, got translated into the 1995 MSA, and also applies to non-UK ships which are within UK territorial waters. The Act requires these ships to take reasonable steps to ensure that the ship is operated in a safe manner, but it is not applicable to non-UK ships if they only came within the UK territorial waters due to weather or unavoidable circumstances.
Certainly this response was not adequate and did not seem to have solved the problem, it was a very quick response which simply says there is now this new offence, but does not apply to all ships.
The second and longer response is the 2007 manslaughter and homicide Act which came into force in 2008
3 CASE STUDY
According to the record of the Marine accident investigation branch of the Department for transport, while there were a total of twenty eight on going or current marine accident investigations between 2nd of January 2008 to the 21st of June 2008, there were a total of two hundred and twenty two completed preliminary examinations on marine accidents between 29th June 2002 and 24th June 2008. Interestingly, between 1989 and 2001 there were a total of five thousand nine hundred and sixty marine accidents and incidents out of which only one hundred and sixty seven were investigated
Most of these accidents could very well have attracted a corporate manslaughter prosecution, but did not and the few that did were not successful as prosecution could not secure a manslaughter conviction as was the case in Solway Harvester The reason why most of the shipping companies involved in these accidents were not prosecuted could very well be attribute to the investigating process involved.
On the other hand, the reason for the failure of prosecution to secure a manslaughter conviction for those cases that went on trial shall be examined in the cases of Solway Harvester and Simon Jones.
3.1 THE SOLWAY HARVESTER
This is the case of seven crew members including two brothers & their cousin who set to sail on the Solway Harvester on the 11th of January 2000 and met their deaths as “The Solway Harvester went down in gale-force winds in the Irish Sea, 11 miles off the coast of the Isle of Man.”Deaths which “devastated the remote villages that make up the Machars, in Dumfries and Galloway.”
During investigation, accident investigators found out “11 serious safety breaches on the boat”Following these findings, Mr Richard Gidney, the Director of the company “faced seven counts of manslaughter at the high court in Douglas, Isle of Man.
The trial “was halted at the close of the prosecution evidence … after the trial judge, the acting deemster Andrew Moran QC, ruled there was no case to answer.” The Judge stated that “The evidence put before the jury is insufficient to establish that there was any lack of care, particularly regarding what was the common and accepted practise of the vessels at the time”.
Prosecutors had however posited that the Solway Harvester was allowed to set sail with avalanche of faults, faulty flood alarm and absence of deck cover. The jury was informed that despite the boats flooding history, the bilge pump designed to dispel flood water was not operable besides watertight doors of the boat were for some unknown reason tied open.
The trial judge however, disagreed with prosecution and “criticised several areas of the prosecution evidence,” stating that “after a flood on a sister ship, the Tobrach-N, Mr Gidney had demonstrated “Proactive and safety-conscious conduct” and could not be held responsible for the safety breaches, on board the Solway Harvester.” Mr Moran goes on to say that “There was no evidence by which a jury could conclude that the dependant's conduct departed in any way from what was to be expected, “and certainly it could not be determined as criminal.””
3.2 THE SIMON JONES CASE
This case of Simon Jones came out of a direful accident on the 24th of April 1998. Mr Simon Jones whose death resulted from this accident, started work on the same day he met his death for a company called Euromin as a stevedore at the Shoreham docks at West Sussex. Evidence presented to the court showed that he received no training prio commencing this job which involves unloading a ship of its cargo of coble stones from either Euromin or the employment agency which engaged him on behalf of Euromin. Neither was he given any safety briefing regarding the likely hazard associated with standing under the open grab bucket of a liebherr R984 crane to attach the bags of cobble stones. As a result of this obvious lack of training, shortly after Simon started the job, he was trapped by the bucket, decapitated by it, and “He died apparently almost instantly”.
Subsequently, an investigation by the Health and Safety Executive (HSE) saw it on the 5th May 1998 serving Euromin both “an improvement notice and two prohibition notices” under the Act.While the improvement notice requied Euromin to commence employees health and safety training and instruction, the prohibition notices first “concerned the operation of the Liebherr 984 with the lifting chain attachment and prohibited the use of lifting chain attachments within the grab of the excavator; and secondly prohibited the use of the excavator in an area where other persons would be at risk.” Interestingly, on the 31st of March 1999,the Director of public prosecution (DPP) decided not to prosecute either Euromin or her Shoreham base manager, Mr Martell for manslaughter. The reason the DPP gave for its action despite the obvious breach of the duty of care owed to Simon by both Euromin and Mr Martell, is “that it was not possible to show a causal link between the act of fixing the hooks on the grab and the death of Mr Jones, because there was no sufficient evidence of why the grab had closed”. Therefore the likelihood of securing a manslaughter conviction if it proceeded with the case is slim.
This unsavoury decision by the DPP led Timothy Jones, Simon's brother to make “an application for certiorari in respect of the decision and mandamus to reconsider the decision not to prosecute” the Polish shipping Company Euromin, and its Shoreham base manager, Mr Martell. Leave was eventually granted Timothy Jones for the review of the DPP's decision on grounds that the case challenged the approach employed by the Crown Prosecution Service as regards determining causation. This historic decision set the stage for the twenty two days trial of Euromin and Mr Martell which began on the 7th of November 2001.
Although the trial ended with a not guilty verdict, as Euromine and Mr Martell were not found guilty of manslaughter by the jury, this celebrated case however, exposed “The reality in some of Britain's docks” and the inadequacies prevalent in the law as noted by George Galloway who stated that “I have to tell the House that, according to Sean Currey, Mr. Martell--who is, in legal term, undoubtedly the controlling mind of this company's UK activities--laughed out loud when told that he could face prosecution---in a way, Martell was right to laugh, because the chances of his ever being properly held to account were and are laughably small.”
3.3 OTHER CASES OF CORPORATE MANSLAUGHTER
The cases of the Solway Harvester and Jones exposed to a very large extent the inadequacy of the legislation in existence at that time. The associated deaths in both cases exposed openings in the then law which companies and their controlling minds could exploit and avoid prosecution. A situation which Galloway considered Laughable
Despite the inability of prosecutors of both cases to achieve a manslaughter conviction it is interesting to note that some other cases have successfully achieved corporate manslaughter convictions. The stage for these successful corporate manslaughter prosecutions seems to have been set by the P & Q case where justice Turner in acquitting the defendant company owing to the inability of prosecution to show that the company's controlling mind was grossly negligent, posited that it is possible for a company to be indicted with manslaughter. This case was however, preceded by the case of Norman Holt, the director of David Holt plastics, the director of David Holt plastics, who I December 1989 pleaded guilty to the manslaughter of George Kenyon, a 25 year old employee of the company whose body was in May 1988 dragged into a plastic crumbling machine. “The crown prosecution service accepted a ‘not-guilty plea' from fellow Director, David Holt, with the judge ordering that the case ‘remain on file.'” The company and the two directors ended up with a £47,000 fine for the offence of health and safety violation.
This case of Norman and David Holt was immediately followed by the very first corporate manslaughter conviction case in England – the case of R v Kite. In this case OLL ltd and Peter Kite who was the company's manager were both in November 1994, “convicted of the manslaughter of four students of Southway comprehensive school in Plymouth – Simon Dean (16), Clair Laugley (16), Rachel Walker (16) and Dean Sawyer (17) who died during a canoeing trip in Lyme Regis, Dorset in March 1993.”
Winchester Crown Court was told that the students were accompanied by two unqualified instructors and a school teacher on the trip and were swept out to sea, capsizing several times. No distress flares were provided by the centre, neither did they inform the coastguard of this expedition. Prosecution also notified the court of the protest resignation of some instructors a year before the incident owing to poor safety conditions of the centre. The court sentenced Mr. Kite to three years imprisonment which was later reduced to two years on appeal. The company was also given a fine of £60,000 while Mr Joseph Stoddat the centre manager was acquitted of manslaughter.
This case of Kite was immediately followed by the case of R V Jackson were prosecutors recorded another success. In this case the managing director of Jackson Transport (Ossett) Ltd, Mr Alan Jackson and the company's were both “convicted of the manslaughter of James Hogson who died in May 1994 after cleaning chemical residues at the rear of a road tanker.” The company and its managing director were found guilty of manslaughter for failing to provide “preventative equipment, supervision, or adequate training”for James Hodges who died after using “steam pressure to clean a valve in a tanker blocked with highly toxic chemical.”Alan was given 12 months imprisonment whereas the company got a 15,000 fine.
Another case that is worthy of mention here is that of Roy Bowles Transport Ltd., where two directors of the company Stephen Bowles and Julie Bowles were in October 1999 “Convicted of the manslaughter of Peter Morgan (48) and Barry Davies (38) who died in October 1997 in a seven vehicle pile up on the M25 after a lorry driver, working for the company, fell asleep at the wheel.” The old Bailey was informed that the company's drives including Mr Cox, the lorry driver, had worked very long hours of which Stephen and Julie were aware. They were both given 15 and 12 months suspended sentences respectively. The company's secretary, Victor Gillard, was discharged and acquitted, while the lorry driver, Andrew Cox was sentenced for two and half years imprisonment for causing death by dangerous driving.
The periods between 2000 to 2008 saw an increase in corporate manslaughter convictions, as seen from the records of the centre for corporate Accountability which shows that there were so many cases which ended up with prison sentences or suspended prison sentences, fines on the corporations concerned and even both. Some of these cases which the centre for corporate Accountability identified with the deaths associated with them includes:
- The death of John Speight in February 1998 which resulted to the prosecution and 12 months imprisonment for manslaughter in March 2000 of Roger Jackson, Director of Easy Moss Products Ltd
- The death of Bill Larkman in June 1999 which resulted in a £25,000 fine on the company English Brothers Ltd in August 2001.
- The death of Lee James Smith in November 1999 which resulted in prosecution, conviction and fifteen months sentencing of Mr Alistair Crow His father Mr Edward Crow “received a one year suspended sentence in July 2001.”
- The death of Stephen Hayfield November 2000 which resulted to the 240 hours community service sentence of Mr Julian Clothier, the maintenance man for Denis Clothier and sons, the company which owned the 20 tonne trailer which caused the death of Stephen Hayfield
- The death of Christopher Longrigg in April 2000. In this case, the company Teglegaard Hardwood (UK) Ltd and Mr John Horner, a director of the company pleaded guilty to the manslaughter of Christopher Longrigg an 18 year old labourer who died following the collapse of a stack of timber which fell on him whilst he was working for Telgaard “at the old Dunstan's shipyard in Hessle.
The list includes the following set of cases which shall be discussed in details because they are marine related:
6. Following the death of Conor Bogues and Donall Gibson “Conrad Zych, the owner / skipper of a fishing vessel know as the Greenhill was sentenced to 12 months imprisonment for each charge of unlawful killing of Donall Gibson and Connor Bogues, with sentences to run concurrently.”
During a Joint investigation carried out by the police, the maritime and coast guard agency into the reason behind the grounding and eventual sinking of the Greenhill very close to her destination port Ardglass, it was revealed that on the 19th of “January 2006, the Greenhill sailed with a crew of three, Comrad Zych, 28, Donall Gibson, 22 and Connor Bogues, 24.” The boat trawled for prawns the entire day at the eastside of Ardglass. It stopped trawling at about 1600hrs because it was ordered to return to port. Mr Conrad Zych claimed that during the return journey he spent most of the time in the shelter deck assisting the other crew members to process the prawns, and only stepped back up to the wheelhouse occasionally to check their location . It was one of these occasions when Conrad Zych was in the shelter deck that the boat grounded causing him to run to the wheelhouse and got the engines to full astern. He claimed that the “boat backed of the rocks sustaining serious damage and began to fill with water.” And by the time he instructed the crew to go to the cabin and get their life jackets, the cabin was already flooded so the liferaft was launched. The three of them including Conrad dived into the water but he alone managed to get into the raft.
A serious search was launched for the two crew members to no avail. Divers eventuaally managed to find just the body of Donall.
The trial Judge, his Honour John Hart, condemned Mr Conrad for neglecting important safety precautions, the Judge said that “his neglect to keep a proper look out amounted to gross negligence and led directly to this terrible tragedy.” While sentencing Conrad Zych to twelve months for each charge of unlawful killing the judge said that “‘… the failure to keep a proper watch is a not uncommon practise cannot exculpate the dependant form punishment nor should it affect the nature of the punishment.'”
Death of Mark Spiers
“In Janaury 2002 the fishing vessel ‘Charisma' sank in Carlingford Lough, Nothern Ireland, causing the death of crewman Mark Spiers.”
It happened that the boat set sail after the skipper's father and boat owner, “James Trainer had removed the emergency bilge pump from the engine room leaving a 4 inch hole in the boat's side.” However, before the sail of the boat on 30th of January, Skipper Kevin Trainor announced “that he had fitted a wooden hung into hole from inside the engine room.”
In any case, the boat set off fishing on the 30th of January, but could not discharge its catch because it missed the tide. It then went back fishing on the 31st and as the boat got saddled with both day's catches which came up to 7.5 tonnes of mussels, the boat turned over slowly and capsized.
The accident was investigated by a combined team of the Maritime and Coast Guard Agency (MCA), “the police service of Northern Ireland, and the public prosecution service.” Captain David Carlisle of the MCA Belfast Office, who was part of the investigating team said, “This tragic incident could have been avoided had the appropriate procedures been taken.” Kevin Trainor, the skipper in May 2008 appeared before the Belfast Magistrates Court and “pleaded guilty to two common law charges: the first being endangering a boat causing loss of life, and the second charge of endangering the boat causing the loss of the boat by capsize”. He was eventually given 18 months of suspended sentence on the 23rd of June 2008 at the Down Patrick Crown Court.
The Death of Krisztian Takas
This is the case of twenty six years old Hungarian who died in a fire explosion at a boat yard. The explosion which also caused severe burns on the owner of the boat was said to have occurred while Krisztian and Mr Philip Wyman,the boat owner Krizstian were working on the boat at Smith Quay in Southampton.
Both men “were on board the partially built Yatch melting lead for the keel using propane gas cylinder,” when the blast occurred Krisztian apparently “suffered smoke in halation and died in the fire.”
Mr Wymna was eventually charged with manslaughter and three different offences relating to health and safety. He was found guilty of Krisztian's manslaughter by a jury at Winchester Crown Court in February 2007,” and was sentenced to 18 months in prison.
“In count it was alleged that Wyman had failed to fit regulators on gas bottles that Mr. Takacs was using to melt lead for the keel in the hull”. The trial Judge, “Mr Justice Royce is quoted as saying to Mr Wyman, ‘A fire started. You managed to escape. He sadly did not.'”
3.4 PROBLEM OF SENTENCING A FACTOR WHICH WORKED AGAINST PROSECUTORS
It is interesting to note that part of the problems faced by prosecutors of marine companies for corporate manslaughter is the kind of sentences received by the accused individuals and corporations.
Majority of the sentences apart from being very few years are usually suspended. And it is pretty expensive to prosecute these corporations only to see them escape with little fines or a few years imprisonment in the hands of a Judge. This actually affects the morale of the prosecutors.
However, the Judges have in some occasion defended their actions as seen in the case of David Bail where “The Judge, Justice Owen, said the only reason he had suspended the sentence was because jail would jeopardise the future of the company which employs 25 people.”
There is certainly consideration for the welfare of these corporations, as the Judges try to balance the effect their judgement would have on the company and their employees with the death of the individual or individuals.
3.4 HOW THE CONCEPT OF SEPARATE LEGAL ENTITY AND PRINCIPLE OF IDENTIFICATION WORKED AGAINST PROSECUTORS OF SHIPPING COMPANIES
A company is formed by the process of incorporation. This is an administrative procedure and its correct completion is both necessary and sufficient for the company to exist as an independent legal entity.”An important consequence of incorporation is that the company may be registered as a Limited Liability Company and the members may enjoy limited liability. This means that the company's liabilities are the legal responsibility of the company and the members will not be liable for the company's debts.” It is therefore not open to outsiders to argue that the company is the same as those controlling it. “Although both the high court and the court of Appeal recognised that A Salomon Ltd, having complied with the registration provisions of the 1862 Act, was a corporate entity, they had not contemplated the fact that once incorporated the company could not be considered as anything other than an independent entity, totally separate and distinct from its founder, Mr Salomon. The House of Lords' interpretation of the separate legal identity of a company was, in respect of A Salomon Ltd, absolute”
A similar idea to this basic principle is that a company's directors and shareholders may enter into an agreement with it, and do not inherit liability for its debt and defaults as seen in the case of Leeor even own its properties as was the case in Macaura.
This “ legal separation between the company and its members and those with whom it deals is often described using the metaphor of a veil, or the veil of incorporation which is drawn between the company and all other legal entities. This separation following Salomon, is recognised in almost all situations.”
However, the spirit of the decision in Salomon has not been university followed making it difficult “to explain the judgements which deviate form the strict rule of the separate legal entity” and also impossible to say with certainty when the veil could be lifted. Despite this uncertainty, the corporate veil still shields a properly incorporated company from scrutiny. This is one of the problems prosecutors of shipping companies faced in the cases of Jones and that of the Solway Harvester. Since companies are protected by the veil of incorporation, the veil of incorporation must first have to be lifted so as to identify the wrong doors – “the directing mind and will” of the company who could be said to be responsible for the crime that has been committed.
It is common knowledge that the criminal law evolved as a means of addressing the wrongful acts of individuals as such these individuals can be held accountable and blamed for their wrongs. “Stigmatic punishment can be used to mark the appropriate degree of censure.”Especially where it involves mens rea crimes, “such individualistic notions of responsibility do not naturally encompass artificial organisations and could only be applied by humanising companies in the sense of breaking them down, metaphorically, into their underling human companies to see if there was an individual within the company who had committed the actus reus of a crime with the appropriate means rea.” Certainly this person must be of consequence to the company's structure before he can be considered to represent the directing mind of the company, “and for his or her acts to be identified with the company itself, in such circumstances, the company could be directly criminally liable (as well as the individual).”
This principle of identification was the only way the courts could impose criminal liability on companies for men rea crimes as seen in the Tesco case.
In the opinion of Clarkson, the identification principle is appropriate for companies that are managed by small owners as was the case in kite.
The principle is however ridden with problems as “over the past decade there has been a growing realisation that it simply does not reflect modern corporate practice,” especially in very large companies. Clarkson, also posits that the doctrine is not in line with the decision-making practice of modern companies “which is often the product of corporate policies and procedures rather than” the decision of an individual as seen in the P& O case where it was difficult to ascertain who was in charge of safety issues within the company.
Despite these problems noted by Clarkson, this concept of separate legal personality of companies coupled with the use of the identification principle to prosecute companies has been one of the major reasons why prosecutions of companies in general and shipping companies in particular and shipping companies in particular had little successes with manslaughter prosecution.
3.5 PROBLEM OF ENFORCEMENT ADDITIONAL REASON FOR THE COLLAPSE OF THESE CASES
It is also important to note that the “enforcement procedure and public attitudes moulded by the media, the state and the companies” affected these cases. It used to be the practice that when deaths or serious injuries occurred at work “the typical response is to describe this as an ‘accident'- which in turn structures the official response.”
Although the 1974 Actcriminalises employers failure “to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees,” its drafting however, failed to make “reference to whether a worker is killed or injured or not.” This therefore contrasts strongly with “available offences when persons are killed or injured outside their workplaces, which are structured in terms of the seriousness of the harm caused.”
The enforcement of the 1974 legislation is the responsibility of “the Health and Safety Executive (HSE), which has the power to notify companies that certain safety matters require attention or to bring a criminal prosecution.” This therefore limits or incapacitates the police which cannot carry out investigation where a person is killed or even suffers serious injury at work. The common practise therefore, is that an investigation is carried out by the HSE following death or any serious injury which occurs at a work place. The HSE on its own , does not consider its primary duty as initiating or commencing prosecution but instead it sees its primary function as that of helping and giving advice to well-behaved companies as well as ensuring that the practise of these companies continue to be good. This HSE which is short-staffed and financially limited, Clarkson “ Will only press charges in cases that it believes represent a flagrant breach of the 1974 Act.” This accounts for why so very few companies are prosecuted for work place death. “ In 1993/94 for example, the HSE commenced 1,793 prosecutions yet, in contrast issued 10,523 notices (improvement notices, which constituted 61.5 percent of all notices, immediate prohibition notices, and deferred prohibition notices).”
While one can argue that advantages exist in giving out notices instead of commencing prosecution where it relates to offences like murder or manslaughter the same argument cannot “be made when corporate wrong doing has caused the death or serious injury of workers”. Interestingly, where the HSE decides to prosecute these companies in default , it does so at the magistrate courts simply because it is cheaper and quicker, but the maximum fine that can be imposed by the magistrate courts is not only insulting to the victims, but painless to the perpetrating companies who are in no way deterred.
In addition, even if the company is prosecuted and found guilty of the crime it has been charged with, the punishment that can be meted out to it is not the same as that of an ordinary person who could face imprisonment, fines and even community service. The only likely punishments that can be imposed on a company are fines or improvement orders which could on only very rare occasions lead to closure of the company's business where it fails to meet the standard set for it.
4. THE CORPORATE MANSLAUGHTER AND CORPORATE HOMICIDE ACT 2007 – BRIEF SYNOPSIS
Before 6th of April 2008, corporate bodies, could be prosecuted for different criminal offences, ranging from health and safety violation to the common law offence of gross negligence manslaughter. In any case, for the company to be said to be guilty of the offence of gross negligence manslaughter, there was the need for prosecution to show that a senior individual who could be said to be the controlling mind and will of the company was also guilty of the offence – the principle of identification.
All of this changed from the 6th of April 2008 when the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) came into force in the UK. The new offence is known as corporate manslaughter in England, Northern Ireland and Wales, but as corporate homicide in Scotland.
However, where any conduct constituting the offence took place before the 6th of April 2008, the already existing common law will apply, but this new Act will apply the deaths or conducts resulting to death, took place on or after the 6th of April 2008.
This new offence is intended to act as a way of accounting for serious corporate management failings, so as to overcome the old common law problems of aggregation and identification. The scope of the offence is even broader than addressing the two problems of the common law noted above to include liability for corporate manslaughter of corporations which abinitio was imposible.
4.1 ANALYSIS OF KEY ASPECTS OF THE ACT - OFFENCE CREATED AND ITS ELEMENTS
“An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised – (a) causes a person's death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deseased.”It goes on to say that “An organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1).”
Section 1(1) of the Act simply defines the new offence, building it on key aspects of the common law of gross negligence manslaughter. Obviously one wouldn't expect it to be otherwise as the offences are very similar. However, the big question here is how successful was the old law? And how much success do we anticipate this new law is going to have? The big problem which persisted with the old corporate situation was that prosecutors could not prosecute a company unless they also found individuals who could be prosecuted alongside the company. This is the situation this Act is trying to move away from. So rather than being contingent on the guilt of one or more individuals, liability for this new offence depends on a finding of gross negligence in a way in which the activities of the organisation are run.
“The offence---is called – (a) corporate manslaughter, in so far as it is an offence under the law of England and Wales or Northern Ireland; (b) corporate homicide, in so far as it is an offence under the law of Scotland.” The offence is committed where in particular circumstances an organisation owes a duty to take reasonable care (duty of care) for a person's safety and the way in which activities of the organisation has been managed or organised amounts to a gross breach of that duty and causes the person's death. So duty of care has first got to be proved, the breach of that duty of care, and then causation. In addition, the courts will consider how the fatal activity was managed or organised by senior management as a substantial element of the gross breach, “including any systems and processes for managing safety and how these were operated in practice.”
A company or organisation found guilty of this offence “of corporate manslaughter or corporate homicide is liable on conviction on indictment to a fine.”
4.2 ORGANISATION, MANAGEMENT AND CAUSATION
“The organisations to which this section applies are – (a) a corporation; (b) a department or other body listed in schedule 1; (c) a police force; (d) a partnership, or a trade union or employers' association, that is an employer.”
Corporations simply means any incorporated body such as limited liability companies – as defined by the 2006 companies Act. The term also includes organisations like the NHS Trusts and local authorities as contained in the National Health Service Actand the Local Government Actrespectively.
Departments and other bodies mean crown bodies like the Assets Recovery Agency, Postal Services Commission, Office of Fair Trading and other Government departments as set out in schedule 1 of the Act. These bodies were before now immune from prosecution, but section 11(1) of the Act now deprives them of any immunity they had, making it possible for them to be prosecuted for now for manslaughter.
The police force can now also be prosecuted for manslaughter. Where this happens, indictment is on the force itself, but where prosecution is for HSWA indictment is on the Chief Constable.
Concerning “a partnership, or a trade union or employers' association, that is an employer”, under this Act, these can be prosecuted. Such prosecution however, can only be carried out “in the name of the partnership ( and not in that of any of its members).”Any “fine imposed on a partnership on its conviction of an offence under this Act is to be paid out of the funds of the partnership.”However, individual partners may still be prosecuted under common law. This Act clearly points out that “a partnership is to be treated as owing whatever duties of care it would owe if it were a body corporate.”Since the partnership Act provides that a limited liability partnership is a body corporate it is therefore covered by this Act. However, it is important to point out that such a partnership can only be prosecuted for the offence of corporate manslaughter if it is an employer of labour.
Some pertinent questions arise here such as: How does one determine whether the activities of the corporation were managed or organised in a way which is in breach of duty? What kind of things will prosecutors of maritime/shipping companies look at to determine whether the company was managed or organised by senior managers in a way which is going to cause that persons death. How can this, be proved on a practical basis – determining who implements the company's health and safety procedures – the management structure.
Certainly, there will be written or documentary evidence of this, and prosecutors of such companies will look at the activities of senior management of the companies to see whether or not they implemented the health and safety procedures correctly. Another question that arises therefore is, to the extent of doing this – checking the activities of the senior management, have we really in practice gone away from the identification process which this Act intends to avoid? In other words, on the one hand, there is a documentary side to it, as codes of practice, quality control, management regimes and all those sort of things would have documentary evidence through out. But some where along the line, because death has occurred, there is still the possibility that the management has not acted correctly to the extent that it is grossly negligent.
Obviously, where the management is that of a small company with two or even three directors prosecutors will effectively still be pointing there fingers at an individual and that individual cannot only be prosecuted themselves for gross negligence, on the context of what they have done and in the context of the management structure, so too can the company as shown in the case of Jones. It is therefore likely that there is little that can be done in this regard especially as companies do not really exist, but are only figments of our imagination and the only way they really exist is through people. In reality this is one way of splitting the offence.
Interestingly this Act did not give a definition to causation presumably because it is built on key aspects of the common law – gross negligence. The test shall therefore be as that set out in the Douglas Williams case where Lord Woolf posits that “For gross negligence manslaughter, so far as the facts we are considering are concerned there must be:
i. negligence consisting of an act or failure to act;
ii. that negligence must have caused the death in the sense that it more than minimally, negligibly or trivially contributed to the death; and
iii. the degree of negligence has to be such that it can be characterised as gross in the sense that it was of an order that merits criminal sanctions rather than a duty merely to compensate the victim.
In relation to both types of manslaughter it is an essential ingredient that the unlawful or negligent act must have caused the death at least in the manner described. If there is a situation where, on examination of the evidence, it cannot be said that the death in question was caused by an act which was unlawful or negligent as I have described, then a critical link in the chain of causation is not established. That being so, a verdict of unlawful killing would not be appropriate and should not be left to the jury.”
There certainly won't be any need to show that failure on part of management was the sole cause of the death. Prosecutors will need to establish that were it not for this management failure plus a substantial element traceable to senior management, the death would not have resulted. The law here, does not acknowledge remote causes, and in most cases where there is an intervening incident, the courts may conclude that management failure did not cause death.
4.3THE RELEVANT DUTY OF CARE
It must be shown that there was a duty owed under the law of negligence, and no reference is made to the criminal law at this stage, it is simply the law of negligence. This is because the common law offence which this Act seems to be mirroring started with negligence which it later classified as gross and only at this point of classification from negligence to gross negligence, did it become criminal.
Relevant duty of care simply means duty owed according to the law of negligence which includes duty owed to employees or other persons working for the shipping company or performing services for it. So employees acting as seamen on board the ship, stevedores who load and off load the ship, and all other workers are clearly covered by the Act.
““relevant duty of care” has the meaning given by section 2, read with sections 3 to 7.” Interestingly, sections 2(1)(d) and 2(2) are not currently in force and may even not be in force for a long while.### However, s.2(1) provides that the relevant duty is that owed under the law of negligence. This simply means that the Act created no new duties, but simply accepted the duties owed at common law. It is important to note too that most of these duties have already found there way into statutes, as exemplified by the Occupiers Liability Acts and even the Defective Premises Act which currently set out the duties owed by an occupier, even though common law still determines who owes these duties and to whom they are owed.
The act under section 2(4) re-echoes section 2(1) but proceeds to posit under subsection (6) that common law rules which have “---the effect of preventing a duty of care from being owed by one person to another by reason of the fact that they are jointly engaged in unlawful conduct” and those which equally prevents “---a duty of care from being owed to a person by reason of his acceptance of a risk of harm” should be disregarded. This common law rule is the tortuous negligence principle of ex turpi causa evidenced in both the cases of Willoughby and Wacker. The 2007 Act is therefore making it possible for companies to be prosecuted irrespective of the status of the employee.
The duty in question must also be a relevant one for the offence as contained in section 2(1). However, the existence of a statutory duty to perform an act, does not always mean a relevant duty of care automatically exists, so the fact that the High way Authority is under a duty to maintain roads in line with the Highways Act,or a Ports Authority, as failure to do so will not produce a duty of care for a negligent motorist or pilot. Although a negligent or faulty maintenance by the authorities could result to a duty of care.
The determination of whether or not the company owes a duty of care to an employee rests on the trial judge in line with s. 2(5). However, the determination of whether the said company was in breach of that duty, lies with the jury as per s. 8(2). There seems to be some overlap between the statutory duties and those of common law. For instance employers are under a duty to ensure the safety of their employees under both the health and safety law,and the law of negligence.
It is important to mention at this point that the duty is owed by the company/organisation and not by the director/directors. This however, does not in any way affect the duty owed by the director by virtue of his office to people who may one way or another been affected by the actions of the company as shown by Ashworth J who posited in the Huckerby case that a director owed a duty to ensure that the law was obeyed.
4.4 THE CONCEPT OF GROSS BREACH & SENIOR MANAGEMENT
“An organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1)”In order words, immediately a relevant duty of care is shown, any breach of that duty must be one which falls far bellow what is reasonably expected from the organisation.
The Act posits that the seriousness of the failure and the extent of a risk of death it posed are very crucial factors which the jury must consider to determine whether there has been a breech. The Act goes on to state that the above breach which causes or poses a risk of death must be one that could be linked to senior management failings.
The concept of the foreseeability of risk was completely excluded from the definition of this Act presumably because of the lack of capacity to foresee by a corporation which is only a person at law. This exclusion of foreseeability by the Act, is in agreement with the law commission's position.The law commission however, also made it clear that this did not stop the jury from determining whether it was foreseeable to senior managers as seen in the case of Halton Traffic Management where s.3 HSWA was put to test and the defence was allowed foreseeability.
The Act also allows the jury to consider some non-causative breaches as well as any other matter it feels is relevant in determining breach.
The Act under section 18, excludes secondary liability of individuals of the offence corporate manslaughter, but does not affect the direct liability of those same individuals for health and safety offences, gross negligence manslaughter, or even homicide. It also puts an end to the application of the “common law offence of manslaughter by gross negligence” to corporations.
Senior management is defined by the Act as “persons who play significant roles in ---making of decisions about how the whole or a substantial part of its activities are to be managed or organised,”including “the actual managing or organising of the whole or a substantial part of those activities.”This incapsulates people in direct management chain, and those in regulatory compliance roles as shown in the Tesco case.
No definitions were given by the Act for the terms ‘significant' and ‘substantial' but the term significant seems to apply to people with influential involvement, and seems to exclude those people who execute the activities. On the other hand, the substantial nature of the company's activity is very important in ascertaining whether the offence will apply in circumstances where the company has either so many work outlets or is an organisation with some regional offices and managers.
It is very important to state here that the test for senior management is broader than that of the test for the controlling mind which seems to limit the offence to the activities of the directors. It is possible for a regional manager to be held accountable, but that will depend largely on the number of regions, the management structure on ground, the company's activities and even the regional managers' job description.
4.5 PROSECUTIONS, EXCLUSIONS, INVESTIGATIONS AND SENTENCING
The 2007 Act provides that “Proceedings for an offence of corporate manslaughter may not be instituted in England and Wales without the consent of the Director of Public Prosecution.” Neither shall it “be instituted in Northern Ireland without the consent of the Director of Public Prosecution for Northern Ireland.”
The Act lays down specific rules on jurisdiction of the new offence of corporate manslaughter so as to determine if a particular death comes under the new offence. There shall also be an application of the criminal justice Actand the Magistrates' Courts Act.Invariably, every plea must be a written plea, since the offence is indictable only.
Concerning exclusions, the Act will not apply to some government and public functions where there are obvious questions of public policy and where other kinds of accountability already exist. These exceptions are of two kinds - comprehensive exemptions and the partial exemptions.
This new offence of corporate manslaughter does not apply if a breach of any duty of care owed by an organisation where a comprehensive exemption exists. The exemption covers public policy decisions under section 3(1) like military activities, peace keeping operations and terrorism under section 4, and finally police operations as covered by section 5(1) and (2).
Regarding partial exemption on the other hand, the offence of corporate manslaughter does not apply unless the death which occurred is closely tied to the company's duty as an employer or as one occupying a premises. This, includes things like conducting inspections in exercise of a statutory function under section 3(3)or even child-protection and probation functions under section 7. Section 6 of the Act does not allow exemption on matters concerning the administering of medical treatment. It however allows exemptions to apply to decisions regarding which patient should first be treated or attended to and which should be treated later.
Once a criminal offence has been suspected, the police working in conjunction with the HSE, Local Government Authority, and other regulatory authorities shall lead an investigation. While the Crown Prosecution Service in England and Wales shall be directly responsible for proceedings under this new offence.
During investigation, the police is expected to consider the possibility of a corporate manslaughter prosecution as well as x raying the activities of individuals who could also be prosecuted for gross negligence manslaughter.
Any organisation that is found guilty of the offence of corporate manslaughter shall on indictment receive an unlimited fine.It is also possible for the courts to impose a publicity order.This order requires the organisation so convicted to publicise the details of the conviction and fine it has received from the court. Presumably, this is intended to shame the organisation and possibly deter others from committing the same offence. However, this publicity orders are to become effective once sentencing guidelines become available. There is also the likelihood that courts may decide to impose remedial ordersthereby compelling the said organisation to put measures in place to address the inadequacies which must have led to the death for which it has been prosecuted for the offence of corporate manslaughter.