Corporate Manslaughter Law Dissertation Proposal

A legal theory or a practical reality?

1. An Introduction to Corporate Manslaughter Law

This dissertation is intended to explore both the existing and new bill on Corporate Manslaughter and consider the many apparent failings in the system. The assignment will consider whether or not the existing law has provided sufficient redress and whether or not it is sufficient or simply just seeks to provide a theoretical ideal. The same considerations will then be applied to the new corporate manslaughter bill.

2. Provisional Title

Corporate Manslaughter – legal theory or practical reality?

3. Aim

The main objective of this study is to identify whether or not Corporate Manslaughter is simply a legal theory or a practical reality. This is to be considered both in light of the existing law and the new bill on Corporate Manslaughter

• • To consider the current law on corporate manslaughter
  • To consider the reality/practicality of the test of directing minds
  • To consider the theory of corporate manslaughter
  • To consider in particular causation and Mens Rea
  • To consider Corporate Manslaughter’s relationship with Health and Safety Law
  • To consider whether or not in reality there exists such a thing as corporate manslaughter
  • To consider the impact the new bill is likely to make (theoretically and practically)

A statement of intent will allow the author to conclude on whether the research has answered the question. This will focus the paper on the original aim.

4. Research Strategy

The first stage is to discuss the topic; this will sound off ideas, fellow students and colleagues will be involved. This will add practical ideas and suggestions, and hopefully open new avenues of thought.

The next stage will be the literature review. The purpose of this is to discuss theories and ideas that exist on the topic and this, will form the majority of the paper. This secondary research will complement and test the findings from any primary research.

Tertiary data sources, such as library catalogues and indexes will be scanned for secondary data. This will produce an exhausting list of journals and newspaper articles, published books and Internet addresses. With the amount of literature, it will take time to sort out the relevant material for the research. To narrow down the search Bell’s (1993) six point’s parameters will be applied.

5. Literature Search

Appleby M & Forlin G, (2004) ” Corporate Killing: Dead or Alive”, New Law Journal 154.7110 (11) – talks about health and safety prosecutions and corporate manslaughter and their interaction

Author Unknown, (2004) ” Analysis: The Wheels of Injustice”, The Lawyer September 13

Ellis N, (2001) “Corporate Manslaughter”, Due Diligence and Risk Management 2.2 (17) – pre bill and talks about the need for reform in this area of the law

Forlin G, (2005) “Corporate Manslaughter – Where are We Now?”, New Law Journal 155.7176 (720) – discusses the corporate manslaughter bill and that it has not gone far enough to remedy the problems

Forlin G, (2004) “Directing Minds: Caught in a Trap”, New Law Journal 154.7118 (326) – discusses the issue of what can be considered a “directing mind” ?

Forlin G, (2004) “Corporate Killing – Will Directors Ever Be Held Accountable?” Medico-Legal Journal 71 (159) – discusses generally the problem of corporate manslaughter and why should be bill

Hall J, (2004) “Transport – Kill Bill”, The Lawyer, July 5 – discusses the corporate manslaughters bill’s progress through parliament – including key dates of attempts of prosecution under old law

Hainsworth A, (2001) “The Case for Establishing Schemes of Corporate and Individual Fault In The Criminal Law”, Journal of Criminal Law 65(420) – good article for history of corporate crime- argues that there should be two separate schemes one which deals with individual fault and one that deals with corporate fault

Hendy J, (2002) “Railway Disaster”, Medico-Legal Journal 70 (3) – discusses corporate manslaughter with particular emphasis on railway accidents; suggests solutions and explanations for railway disasters

Jefferson M, (2001) “Corporate Criminal Liability: The Problem of Sanctions” Journal of Criminal Law 65 (235) – advantages and disadvantages of sanctions currently in operation for corporate manslaughter – suggests alternatives

Jefferson M, (2000) “Corporate Criminal Liability in the 1990’s”, Journal of Criminal Liability 64 (106) – discusses the courts and governments approach to differentiation between individual and corporate liability

Johnson B & Baillie A, (2004) “Human Resources: Corporate Manslaughter”, Advising Business: Law and Practice 3.4 (6) – overview of the current law on corporate manslaughter

Parsons S, (2003) “The Doctrine of Identification, Causation and Corporate Liability For Manslaughter”, Journal of Criminal Law, 67(69) – This article examines corporate liability for manslaughter. It considers the legal effect of the ‘identification’ doctrine and how it operates as a legal barrier to potential corporate liability. The question of whether the ‘conduct’ of a corporation is a cause of death is also examined.

Reid K, (2003) “Policing the Railways And Related Legal Issues”, Journal of Criminal Law 67 (495) – This article takes the form of a critique of the government implementation of the new statutory accountability of British Transport Police (BTP). It starts with a brief review of why the role of BTP is important to the public and how the force interacts with other forces (including wider concerns about rail safety and responsibility of rail companies to the law through development of the law of corporate manslaughter).

Robins J, (2004) “Feature: Death Penalty”, The Lawyer March 8 – history of law on corporate manslaughter – talks of divided opinion and discusses the history to bill on corporate manslaughter

Rohan P, (2003) “Corporate Manslaughter: Taking the Blame For Disaster”, Law Society Gazette 100.24 (28) – discusses the new bill (when it was at proposal stage) and its implications for corporate manslaughter – argues new bill is “toothless”

Trevelyan L, (2005) “Corporate Manslaughter – Fatally Flawed?”, Law Society Gazette – discusses the corporate manslaughter bill The planned offence of corporate manslaughter has been criticised by lawyers because it applies only to companies rather than individuals, and it does not cover unincorporated bodies or partnerships. Companies face prosecution when members of senior management ‘grossly fail to take reasonable care for the safety of employees or others’. The offence will be punishable by an unlimited fine that can be levied against government departments as well as public and private companies.

Walker H, (2001) “Criminalising Companies: Will Corporate Killing Make a Difference?” New Law Journal 151.7003 (1494) – discusses whether reforms are necessary and whether or not they will make a difference to the way in which companies conduct themselves

Wells C, (2000) “Prosecuting Safety- A Cautionary Tale” New Law Journal vol 150 6959 p1648 – Argues that Campaigns on behalf of those injured or bereaved to bring corporate manslaughter prosecutions may, however, confuse the aims of harm reduction with those of retribution and that this has led to a distorted debate in which the clamour for blame through criminal law obscures the need for parallel action of a different kind.

www.corporateaccountability.org

www.tuc.org.uk/

www.lawcom.gov.uk – 1996 Consultation on Corporate Manslaughter

6. Structure

The Literature review is to be divided into three main sections and then sub divided as follows:

1. Existing Law

1.1 History of Existing Law

1.2 Identification

1.3 Causation

1.4 Meaning of Gross Negligence

1.5 Relationship with Health and Safety Law

1.6 The Effect of Sanctions

1.7 Theories on Existing Law

2. Corporate Manslaughter Bill

2.1 Law Commission Report on Corporate Manslaughter

2.2 Reasons and Background to Reform

2.3 Directing Minds

2.4 Control and Gross Negligence under new Bill

2.5 Causation

2.6 The Effect of Sanctions

2.7 Theories on New Bill

3. Practical Examples (all examples to consider whether or not the existing law worked/failed and why it worked or failed. Consideration of this will provide the writer with an indication of whether or not the law is a practical reality or legal theory. Also under each example writer to consider if the outcome would have been different under new bill.)

3.1 Hatfield

3.2 Paddington

3.3 Herald of Free Enterprise

3.4 Piper Alpher

3.5 Marchioness

3.6 Thames River Boat