The Corporate Manslaughter

Will the Corporate Manslaughter Act 2007 make it any easier to convict               Companies that kill?

‘Corporate manslaughter is a criminal offence in English law, being an act of homicide committed by a company. In general, in English criminal law, a juristic person is in the same position as a natural person, and may be convicted for committing many offences. The Court of Appeal confirmed in one of the cases following the Herald of Free Enterprise disaster that a company can, in principle, commit manslaughter, although all defendants in that case were acquitted.’ http://en.wikipedia.org/wiki/Corporate_manslaughter_(England_and_Wales)

Corporate Manslaughter is not another heading for involuntary manslaughter I.e constructive manslaughter, negligence manslaughter etc it is the term used for any type of manslaughter caused by a ‘corporation’ rather than an individual. ‘Corporation’ is the legal name for a company therefore to better understand the term corporate manslaughter think of it as manslaughter committed by a company. In practice companies are normally convicted of the ‘gross negligence’ form of the offence and the individual worker convicted of the more serious ‘manslaughter’ form. The problems that arose from the common law approach to corporate manslaughter is that the legal status of a corporation wasn’t clarified therefore the law recognised two types of ‘person’. ‘Natural persons’- known as human beings and ‘artificial persons’ – which covers a range of bodies including companies. The problems that a company present to criminal law is that it does not physically exist; therefore it is difficult to attach proof of a mens rea needed to successfully prosecute ‘persons’ of manslaughter because something that doesn’t physically exist cannot have thoughts or intentions.

Corporate manslaughter has long caused debate and until recently, this area of law was governed by common law. In common law a prosecution for common law would normally be based upon the offence of gross negligence manslaughter. This is where the problems occur because to be prosecuted, the common law element requires the prosecution to identify a ‘directing mind’, this meant that two prosecutions would be brought at the same time, one against a senior employee (‘directing mind’) and one against the company. Liability would therefore be placed upon the company using the principle of the directing mind and the employee would be personally liable for manslaughter.

‘In 2004/05 there were 581 deaths at work. Over the last 40years 22,000 people have been killed at work or through business-related disasters. The health and safety executive considers that 70 per cent of work-related deaths are preventable. But between 1992 and 2000 there have only been 34 prosecutions for work-related manslaughter and only six have been successful’, all of which were small companies. This is due to the prosecution finding it easier to identify the ‘directing mind’ due to small company directors usually being involved with the day to day running of the business and overseeing all there employees.

One of these six cases was Kite v OLL Ltd (1994), OLL Ltd arranged various outdoor activity holidays for groups of school children at Lyme Regis. It was a very small company, having only four employees, with only one director, Mr Peter Kite. In 1993 a group of school children got into difficulties during a canoeing trip which resulted in the deaths of four of them. It was clear that OLL had given very little consideration to health and safety generally, and no procedures were in place to assess risks to young children. The weather conditions had also not been considered in any detail.

Both the company, OLL, and the managing director, Mr Kite, were indicted for

manslaughter. The grounds were that they had not considered health and safety issues

adequately. It was found that there was a wilful disregard of safety and OLL was fined

£60,000. Mr Kite was sentenced to three years imprisonment which was reduced to two

years on appeal.

This case was only successful due to the size of the business, Mr Kite only had four employees and was heavily involved in the day to day running of the company, therefore it was easy to identify the ‘directing mind’ therefore he was convicted as well as the company. At the time if Mr Kites’ business was a large business with thousands of employees, different sites and a range of managers and directors this case would not have been successful due to it being near impossible to find a sole individual who is the controlling mind of the company for the purposes of identification doctrine. An example of this would be Crown v P & O European Ferries Ltd [1990] 93 Cr App R. In this case P & O were charged with manslaughter following the deaths of 188 people in 1987 when their ferry capsized. This was due to the bow doors being left open whilst leaving the harbour, because the employee responsible for closing the doors had fallen asleep. The investigation into the deaths found the companies own regulations made no reference to the closing of doors and this was not the first occasion that it had happened. The inquiry concluded that the company’s management shared responsibility for the failure in their safety system, but the criminal case collapsed due to the prosecution failing to satisfy the doctrine of identification. The judge said ‘The identification principle does not permit the creation of a corporate mens rea by aggregating the knowledge/states of mind of a number of (controlling) officers. Several innocent states of mind cannot be aggregated to produce a single guilty corporate one,’. He went on to say that ‘if the present state of law is unsatisfactory and law is to be changed then it is up to Parliament to do so’.

Due to the lack of convictions of large organisations and the complications of the law it was decided to pass an act to help clarify the law and help to convict a higher percentage of cases. The Corporate Manslaughter and Corporate Homicide Act 2007 has been passed with a view to tackling these issues and the criticisms I have assessed above. Section 1 of the act states:

(1) An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised –

1. Causes a persons death, and
2. amounts to a gross breach of relevant duty of care owed by the organisation to the deceased.

This offence is called Corporate manslaughter in England and Wales. Conviction will result in a unlimited fine and a remedial order instructing the offending company to remedy any breach of the health and safety legislation.

In s. 1 (3), an organisation is guilty of this offence if ‘the way in which its activities are managed or organised by its senior management is a substantial element’ in the gross breach of a duty of care.

The new act also refers to senior management. Section 2 states that ‘senior management’ means:

The persons who play significant roles in –

• the making of decisions about how the whole or a substantial part of its activities are to be managed or organised, or
• the actual managing or organising of the whole or a substantial part of those activities.

It is my interpretation of this section that senior management is effectively being defined as being those who play a role in making management decisions about, or actually managing, the activities of the organisation as a whole, or a substantial part thereof, and the role in question must be significant in relation to the relevant management
 activity. I feel that what constitutes “substantial” is open to some interpretation and may need a test cause to certify what is meant by this.

This final draft of the act will make it more difficult for prosecutors to establish a case than it would have been if earlier reforms would have been passed, and on my viewing of the act its my understanding that the prosecution will not need to establish a ‘directing mind’ as in the earlier act, there must however still be a “gross” breach of a duty of care by an organisation for a prosecution to proceed, and a “gross” breach is defined as where “the failure in question constitutes conduct falling far below what can reasonably be expected of the organisation in the circumstances”. The new law allows the prosecution to blame more than one individual, it can be a group of senior managers at fault to establish a gross breach of duty. It is important to note that this does not necessarily mean directors though. This mention of ‘senior management’ has raised some concerns because by limiting liability to ‘senior managers’ companies can simply appoint health and safety responsibilities to junior managers to avoid criminal liability which would be counterproductive.

There are five key differences I have gathered from my research into the old and new law, firstly under the old common law offence, only companies could be prosecuted; the new statutory offence also applies to crown bodies, partnerships and some other unincorporated organisations as long as they employ staff, this widens the net and will not necessarily make it easier to prosecute on its own but will close a legal loophole to stop partnerships etc from being immune from manslaughter charges.

        Although not really relevant there will now be one single offence for England, Wales, Scotland and Northern Ireland. Before, there were three separate common law offences: one for England and Wales, another for Scotland, and another one for Northern Ireland, although there were significant similarities between the three of them. This also point will also not help to prosecute companies easier but will allow companies that have bases across the U.K to generalise there health and safety, because in the common law in England something may have been classed as safe whereas the same thing in Scotland may have led to prosecution.

Under the old common law offence it was necessary to prosecute a director or senior manager (directing mind) of the company for manslaughter, in order to be able to prosecute the company for manslaughter. The prosecution against the company was entirely dependent on the evidence against the senior manager. Under the new statutory offence, the prosecution of a director or senior manager is no longer necessary. Instead, there is now an entirely new test to assess the guilt of the company that rests upon whether there has been a serious management failure within the organisation. This is the big change, allowing the prosecution to challenge serious management failure of a number of people rather than having to pin point one individual as the ‘directing mind’. This gets rid of the main old problem of having to find a ‘directing mind’ but does this cause another? Because now companies will shift more powers down to the managers lower down the hierarchy as they will not be liable due to them not being senior managers.

There is a clearer test for assessing whether or not there has been ‘gross’ negligence. The jury must consider that the organisation’s failure fell “far below what can reasonably be expected” and there are factors set out that the jury need to take into account. Again this is a welcome change but will it really help to prosecute the bigger companies easier? I think that its clearer than the old common law and it will possible help to convict the bigger companies on this section of the law but the ‘senior manager’ act will see the big companies challenging the prosecution and only be prosecuted for ‘gross negligence’ I.e. R v Barrow Borough council 2004 a middle-ranking council manager stopped a maintenance contract in an arts centre, bacteria grew, leading to an out break of legionnaires disease killing seven people and leaving 50 un well. I am not certain that under the new law the manager would be ‘senior’ enough to be prosecuted.

Under common law the offence, the only penalty was a fine. Under the new statutory offence, in addition to fines, the court has the power to make a “remedial order” that requires the company to remedy the breach of the Act. This is a similar power to the one that the courts have following convictions for health and safety offences. The court also has the power to make a “publicity order” that requires the organisation to publicise any conviction. This will definitely deter companies who will not want bad publicity and to remedy the breach of act but still will not make it any easier to convict big companies.

Overall I think that even though the new act has been well thought out I think it still has not got that clarity that people wanted and is still very much open for exploitation. I think the government has still offered that blanket of protection to bigger companies, I think this is because if they were to try to change the law so that it is simple and easy to prosecute bigger more complex organisations it would bring complex civil services into it such as the police, hospitals etc. I think the decisions to mention ‘senior management’ into the act was to try and make it easier to convict bigger companies but it is just going to have a counterproductive outcome where the senior company managers hand down the health and safety responsibilities down to lesser managers therefore the prosecution not being able to convict either, although it could be argued by the prosecution that if a manager has them responsibilities in effect they have been promoted and taken the title of a ‘senior manager’ . To answer the question do I think the new act will make it easier to convict companies that kill? I think it will but only smaller companies like the old common law approach. Although the law has been changed so that it eliminates the need to find a single ‘directing mind’ it has introduced a new dilemma of finding the companies senior management who are at fault. I think larger companies are have a complex hierarchy and in order to seek out who is responsible there needs to be a more direct law that will stop companies being able to find loopholes to step around the law. In conclusion I don’t think it will make it easier to convict bigger companies and will need some amendments and test cases to clarify some parts of the act but it will certainly help to convict smaller less complex hierarchy companies due to the addition of the much improved test of gross negligence.

Bibliography

• http://en.wikipedia.org/wiki/Corporate_Manslaughter_and_Corporate_Homicide_Act_2007
• http://www.corporateaccountability.org/manslaughter/cases/acqcases/3.htmXXX