Involuntary Manslaughter

Part A

Re: Liability for Alice's Death

I am asked to advise in relation to the death of Alice, as it appears that Noah may have contributed significantly to this death. According to the facts, the death of Alice appears to have been caused by the events preceding Noah leaving the vessel in the life raft. The question is whether this act would amount to involuntary manslaughter, given that there would be insufficient grounds for a charge for murder given the lack of intent.

The modern test for involuntary manslaughter is requires the proving of four key substantive elements, which can be described as follows:

  • Whether Noah owed a duty of care to Alice in these circumstances;
  • Whether Noah breached that duty of care;
  • Whether that breach caused Alice's death; and
  • Whether the breach was sufficiently serious to constitute gross negligence.

Given the fact that Noah was the pilot of the vessel at the time of the incident, and Alice was a retail assistant, there is some doubt over whether Noah in fact owed Alice a duty of care at the time. However, applying the reasonable man test that is prevalent in a tort of negligence, one could argue that a reasonable person would have owed Alice a duty of care in ensuring that she was able to board the life raft safely. Additionally, as captain of the vessel, one would argue that Noah was responsible for ensuring that all persons were able to board life rafts. Therefore, it would be reasonable to conclude that Noah owed Alice a duty of care, and has breached it, causing her death. It can most likely also be argued that Noah's breach constituted a gross negligence given that, when compared to a reasonably competent captain of a vessel, he failed in his duty to execute safety procedures in the event of an emergency. Given that Noah would have to have possessed some sort of special skill in his situation to be a pilot of the vessel, the standard of comparison should be a reasonably competent captain. Therefore, Noah appears to be liable for the death of Alice by involuntary manslaughter.

Re: Liability for Bob's Death

I am asked to advise in relation to any liability that Noah may have in relation to the death of Bob. According to the facts of the event, it would appear that Bob passed away after swimming to shore following the sinking of the vessel he was on. Also according to the facts it would appear that the significant cause of death was the fact that he was dropped on a stretcher by paramedics, which loosened a blood clot which travelled to his brain. Based upon these circumstances, it would appear that Noah has played no role in the factual causation of these events, and hence is not liable in this regard. However, one must also consider the possibility of legal causation, which may mean that Noah could be liable if it could be proven that he ‘set in train' the events causing the death of Bob.

There are probably two main legal principles that need to be considered in this circumstance. The first is the substantial cause test, which provides that the event must have had more than a minimal cause of the death. Indeed, in order for Noah to be held liable in this circumstance, it must be proven that he was the cause of the sinking of the vessel, which in turn caused Bob to swim for safety. It is questionable as to whether Noah caused the sinking of the vessel, as it had been checked by a maintenance crew before sailing, as well as its upkeep being the responsibility of Tony, as the managing director of Cruising for Pleasure Ltd. While Noah may have had opportunities to prevent the incident himself, the fact is that he took all reasonable steps to bring it to the attention of the company before the vessel departing, and thus should not be held personally responsible. Also, it would appear that the chain of causation has been broken by the intervention of the ambulance officers treating Bob, and hence Noah could not be held liable under this argument either.

Re: Liability for Caitlin's Death

I am asked to advise in relation to the death of Caitlin, and whether Noah has any liability accordingly. According to the facts presented, Caitlin was one of the persons who swam for shore from The Fluke, and hit her head as she dove off. According to medical reports, she was in a stable condition and doing well, although the ambulance was involved in a crash on the way to the hospital and Caitlin died as a result. In order for Noah to be held liable for Caitlin's death, it would again need to be proven that there was a causal link between the actions of Noah and the death of Caitlin, either in fact or in law.

In regards to law, it would be my advice that Noah could not be held to have been the cause of Caitlin's death under the causation tests. This is because the chain of causation has been broken by the intervention of the ambulance officers, and that the death occurred as a result of Caitlin being in the ambulance and not as a result of the actions of Noah. One could not successfully argue that Noah's actions were the substantial cause of Caitlin's death for two reasons. The first reason is that the death occurred outside of the control of Noah, and that Caitlin was doing well upon being transferred to the ambulance. The second reason is that it is questionable whether Noah was actually responsible for the sinking of The Fluke, and thus does not satisfy the substantial cause test in any case.

Factually, it would appear that Noah cannot be held liable, due to the clearly stated fact that Caitlin died on the way to the hospital as a result of the car accident, not from swimming to shore from the vessel. Therefore, Noah escapes liability for Caitlin's death.

Re: Liability for Daisy's Death

I am finally asked to advise Noah in relation to possible criminal liability for the death of Daisy, as a result of her being a passenger on The Fluke when it capsized. According to the facts of the case, it appears that Daisy cut her leg on some form of rusty metal which was present in the water, and died in hospital as a result of a misdiagnosis by a junior doctor, who neglected to take into account her possible allergy to penicillin. Based on legal principles, it would be difficult to hold Noah accountable for the death under the relevant causation tests, given that Noah was not the substantial cause of the death. If more information could be presented which suggested the cut on the leg arose from the negligence of Noah in placing Daisy in the life raft, then there may be a case to answer, as this would obviously satisfy not only the substantial cause test, but possibly the substantive elements of a charge of involuntary manslaughter.

Based on the facts presented, the intervention of the doctor also breaks the chain of causation which means, in any event, Noah cannot be held liable. This is a similar situation to the abovementioned cases of Caitlin and Bob, as the intervention of third parties creates too many variables for the death to be attributed back to the sea accident anyway.

 

Part B

Traditional Rules of Corporate Liability

The concept of corporate liability for criminal offences was only recently established at common law, with the courts handing down the foundation decisions for this principle in 1944. The main rationale behind this development is the fact that directors and shareholders of a company often enjoy the limited liability façade that incorporation of a company creates, meaning that often only the company itself should be held liable for any wrongs or actions. The courts, however, enjoy a great deal of discretion in terms of imposing sanctions against a company which is found to be guilty of a criminal offence. Some of these limitations include:

  • Some offence cannot be committed by a corporation (eg. Rape); and
  • The courts will often refuse to convict a corporation of a criminal offence where the only sanction available to it is imprisonment (eg. Murder and treason).

The courts have often referred to the ‘identification' principle, which essentially means that the actions of a company are often those of its senior management and directors, therefore whatever the directors do, the company does. Take the following dictum by Lord Denning, for example:

A company in many ways can be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. 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 law as such.

Therefore, a company can be found guilty of a criminal offence where such an offence has been committed by its senior management, who in turn act as an agent of the company (and are authorised by its constitution to do so).

How do the traditional laws relate to killing?

The fact is that the traditional laws on corporate liability do not allow for corporations to be held liable for offences where the only punishment available would be a term of imprisonment. This limits the available convictions to any charges of manslaughter.

The new Corporate Manslaughter and Corporate Homicide Act 2007

The recently introduced 2007 Act of Parliament essentially creates the new offence of ‘corporate manslaughter', which does away with the requirement to rely on the common law ‘identification' principle, discussed above. Section 1(1) of the Act details the substantive elements of the offence, which is quite similar to the current common law test that exists for involuntary manslaughter by gross negligence, requiring proof that the company owed a duty of care to the victim, that there was a breach of that duty of care, the cause of death was a result of the way the organisation's affairs or activities were managed, and that the failure by management amounts to gross negligence. Section 1(4)(b) of the Act gives an indication as to whether a breach of the duty of care amounts to being ‘gross' negligence. Essentially, the Act codifies the already existing common law test for manslaughter by gross negligence, but directs it solely at organisations, ensuring that they cannot escape the operation of the law, and clarifying the operation of the ‘identification' principle.

Essentially, the new law recognises the influence that senior management have over the control of the company, by holding the company liable should the directors play a significant role in causing the company to commit the act. While this was perhaps already present in the ‘identification' principle at common law, there is now no longer a requirement that a director of a company needs to be guilty of an offence in order for the company to be guilty. In fact, the only requirement is that the management of the company have played some role in the actions of the organisation that caused the incident, such as a poorly organised event or similar. Therefore, the new law not only creates a new offence primarily aimed at companies, it also reduces the reliance upon the directors being found guilty of a criminal offence in order for the company as a whole to be held liable, making it easier to secure a conviction against a company under the corporate liability principles.

Arguments For and Against Corporate Liability

There could be a number of arguments tendered which would both support and criticise the idea of corporate liability for criminal actions. For a start, a benefit of corporate liability could be that persons are not able to hide behind the limited liability of a company in order to escape liability for criminal actions and, while maybe not being personally liable, may well be as good given that a company may have been founded by that person, with their own money, and hurting the company will in turn hurt the person. Perhaps the most overriding concern is the fact that a corporation cannot be imprisoned, which means that the only realistic option available for sentencing a company would be to subject that company to a heavy fine, which may have little to no impact on large companies. This would be primarily due to the fact that many companies have quite large bank balances, and hitting them with a fine may not get the message across, as a lot of these companies may still be able to write a fine off as the cost of doing business. Another concern of the new law is that it does not automatically include personal liability for directors where a company commits a criminal act of manslaughter. In order to secure a conviction against a director, one would need to prove that the director had the appropriate mens rea for the offence of being an accessory, which requires different burden of proof elements to the principal offence of manslaughter. Under the traditional rules, there was a requirement that in order for a company to be liable for an offence, a director had to be guilty of the same offence under the ‘identification' principle. The modification of this principle in the new law means that the Crown needs to work harder to ensure maximum effect, although it is substantially easier to secure a conviction against a corporation itself under the new law.

All in all, it would appear that corporate liability for an offence has its benefits; however the law certainly has some shortfalls. In an attempt to cover the base of charging corporations, the lawmakers have had to retract on the ability for a director to be held personally liable, thus further entrenching the notion of the strict veil of incorporation, and limited liability, that directors of a company enjoy.

Liability of Cruising for Pleasure Ltd

As a final task, I am asked to advise in relation to the possible liability of Cruising for Pleasure Ltd for the deaths of the abovementioned persons who were passengers on their cruise liner. This is, of course, to have regard for the previously discussed laws of criminal liability. As such, I will tender my advice based on the relevant sections of the newly enacted Corporate Manslaughter and Corporate Homicide Act 2007.

In order to establish the liability of Cruising for Pleasure Ltd, it is a requirement that four statutory tests be satisfied. Firstly, it needs to be established that a duty of care existed between Cruising for Pleasure Ltd, and the passengers that were killed. This quite clearly falls within the scope of section 2 of the Act, as Cruising for Pleasure Ltd owes the passengers the duty of care to ensure that the vessel is sea-worthy and properly maintained, which it quite clearly was not in these circumstances. This meant that Cruising for Pleasure Ltd breached the duty of care owed to its passengers, as it did not take all reasonable steps to ensure the sea-worthiness of the vessel it was operating. Thus, this breach was caused by the manner in which it operated its business affairs, and satisfied the third limb of the statutory test. Finally, and perhaps most crucially, it needs to be found that the negligence by Cruising for Pleasure Ltd amounts to ‘gross' negligence under the Act. The jury would need to have regard for certain factors, such as how the failure of policies within the company may have contributed, as well as the degree of risk of death that this posed to the passengers. On this basis, it would be difficult to suggest that it was not a gross breach, given that if the craft was properly maintained, this accident would most probably not have happened.

Given the circumstances of this case, it would be reasonable to conclude that corporate liability can be attributed to Cruising for Pleasure Ltd in accordance with the relevant provisions of the Corporate Manslaughter and Corporate Homicide Act 2007. As such, Cruising for Pleasure Ltd must bear some, if not most, of the responsibility for the accident due to their poor maintenance of the vessel and, if proper maintenance procedures were put in place and followed, this whole tragedy could have most probably been avoided.

Bibliography

Books

  • Heaton, R., Textbook on Criminal Law (2006, 2nd ed), London: Oxford University Press
  • Herring, J., Criminal Law (2007, 5th ed), London: Palgrave Macmillan

Legislation

  • Corporate Manslaughter and Corporate Homicide Act 2007

Cases

  • Adomako [1994] 3 All ER 79
  • Bateman (1925) 19 Cr App R 8; (1925) 94 LJKB 791
  • Cheshire [1991] 3 All ER 670, CA
  • DPP v Kent and Sussex Contractors Ltd [1944] 1 All ER 119, DC; ICR
  • Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] 1 All ER 481, HL
  • H.L. Bolton (Engineering) Co Ltd v P.J. Graham & Sons Ltd [1956] 3 All ER 624
  • Haulage Ltd [1944] 1 All ER 691, CCA
  • Moore v I Bresler Ltd [1944] 2 All ER 515, DC
  • Pagett (1983) 76 Cr App R 279, CA
  • Smith [1959] 2 All ER 193, CMAC
  • White [1910] 2 KB 124