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Published: Fri, 02 Feb 2018
Corporate manslaughter and corporate homicide act
The Corporate Manslaughter and Corporate Homicide Act was given Royal assent on 26 July 2007. The offence came into force on 6 April 2008 and is called corporate manslaughter in England, Wales and Northern Ireland, and corporate homicide in Scotland.
Prior to the Corporate Manslaughter and Homicide Act there were two ways for a company to be found liable for a criminal act under the common law. Through the use of vicarious liability and through the use of the identification doctrine. The aggregation theory was rejected in R v HM Coroner for East Kent Ex p. Spooner and in Att-Gen.’s Reference (No.2 of 1999)
Through the use of vicarious liability a company can be held liable for the crimes of its employees in the same way that a human employer can be held liable for the crimes of his employees. However this will only apply in statutory crimes of strict liability and it’s not used for proving liability of companies for offences like manslaughter.
The doctrine of identification, also known as the alter ego doctrine meant that in each company there were certain individuals that were being identified as the company itself and in the same way the acts of these individuals when acting in the company’s business were identified as the acts of the company itself. According to Lord Denning, in the case of H.L. Bolton (Engineering) Co Ltd v T.J. Graham & Sons Ltd(where the directing mind test is established) a company can be seen as a human body with brains and hands. The directors and managers of the company or other associates that have a sufficient power represent the brains of the company. The ordinary workers are not said to represent the mind and will of the company as they just do the work they are ordered to, they represent the hands. Under the identification doctrine we are looking for people that have the power to control the company’s actions and they can be identified as the mind and will of the company. The doctrine requires that a person has individually done the elements of the crime, manslaughter and if he is identified as the mind and will of the company then the company is liable for that crime.
Under the identification doctrine it was very difficult in most situations to secure convictions for gross negligence manslaughter by a company. Since an individual had to be found that was personally responsible for gross negligence manslaughter and he had to have the sufficient power to be identified as the mind and will of the company, prosecutions against any other than small companies were proved to be very difficult. In the case of Kite and OLL Ltd 1994 both the company and its managing director were convicted for manslaughter. However in this case the company was a one man company whose directing mind and will was its managing director so the company’s liability was automatically established with its directors conviction. However, in most corporations of a significant size or corporations with complex ways of managing , the doctrine of identification was an obstacle for securing successful prosecutions. In such corporations the personal responsibility for corporate affairs is divided between a large number of directors and managers and consequently it is very difficult to prove that an individual is sufficiently responsible of the mens rea and actus reus of manslaughter in order for a criminal prosecution to be done.
During the course of the 1980s the issue of corporate liability for manslaughter was raised after failure to secure convictions in a series of large scale disasters .In 1987 there was the Zeebrugee tragedy were 192 people died and the King’s Cross fire were 31 people died,and in 1988 the Piper Alpha oil rig explosion led to the death of 167 people. In the Zeebrugee tragedy in 1987, the ferry Herald of Free Enterprise capsized after leaving the port with its doors open and led to the death of 192 people. The assistant who was responsible to ensure that the doors were shut was sleeping and there was no way for the captain from the bridge to ensure whether or not the doors where shut. The inquiry identified irresponsible management decisions which contributed to operational dangers. The prosecution against P&O failed since there was no sufficient evidence to properly convict the defendants including the company for manslaughter because no senior officer was sufficiently responsible for the actus reus or had the required mens rea of manslaughter. Not one of the defendants individually could be convicted of manslaughter and so the company could not be convicted of manslaughter on. The negligence was shared between many individual employers but not sufficiently to sustain criminal liability which will then be attributed to the company. Turner J. held that
Large scale disasters where conviction for manslaughter was failed to ensure followed. No charges were brought after the Ladbroke Grove crash. Moreover on September 19, 1997 a high speed train from Swansea crashed into a freight train at Southall leading to the death of seven people and the injury of many others. The operator responsible for the high speed was charged with manslaughter. No trial took place since it was held that where a non-human defendant was prosecuted it could only be convicted via the guild of a human being with whom it could be identified. No trial took place and the defendant was sentenced for an offence under s.3(1) of the Health and Safety at Work etc act 1974. No employee of the defendant was prosecuted.
The lack of a specific offence for corporate manslaughter/murder and the failure to secure convictions for gross negligence manslaughter to any of the above large scale disasters brought public outcry and also the credibility of law into question. The act aims to deal with the disasters that was impossible to prove criminal liability for companies and wants to ensure that companies responsible for loss of life can properly be held accountable in law
The new offence of corporate manslaughter was proposed by the Law Commission in 1996. The Corporate Manslaughter and Corporate Homicide Act was given Royal assent on 26 July 2007. The offence came into force on 6 April 2008.
The Act abolishes the common law liability as it applies to corporations for manslaughter by gross negligence and it creates a new statutory offence of corporate manslaughter. The new offence is given is s.1 of the Act. Under s.1(1) An organization to which this section applies is guilty of an offence if the way in which its activities are managed or organized (a) causes a persons death, and (b) amounts to a gross breach of a relevant duty of care owed by the organization to the deceased. Under s.1(2) the organizations to which this section applies are (a) a corporation (b) a department or other body listed in Schedule 1 (government and Crown bodies) (c) a police force (d) a partnership, or a trade union or employer’s association, that is an employer. In s.1(3) it is given that an organization is guily of an offence under this section only if the way in which its activities are managed or organized by its senior management is a substantial element in the breach referred to in subsection (1). A very important aspect of the Act is the “relevant duty of care” which creates. As it is explained in s.2 in broad terms (a) a duty as an employer (b) as an occupier of promises and (c) a duty in connection with
The Act as it is provided under section 18 it does not apply to individuals and they cannot be liable for a corporate manslaughter offence. Individuals however, will continue to be liable under the common law of gross negligence manslaughter and also for the existing health and safety legislation.
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