Corporate manslaughter
Encyclopedia
Corporate manslaughter is a criminal offence in English law
, being an act of homicide
committed by a company or organisation. 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.
test to impose criminal responsibility on a company only arises where a person's gross negligence
has led to another person's death and (under the "identification doctrine") that person is a "controlling mind", whose actions and intentions can be imputed
to the company (that is, a person in control of the company's affairs to a sufficient degree that the company can fairly be said to think and act through him). This is tested by reference to the detailed work patterns of the manager, and the job title or description given to that person is irrelevant, but there is often no single person who acts as a "controlling mind", particularly in large companies, and many issues of health and safety are delegated to junior managers who are not "controlling minds".
On 6 March 1987, 193 people died when the Herald of Free Enterprise capsized. Although individual employees failed in their duties, the Sheen Report severely criticised the attitude to safety prevalent in P&O
, stating:
There was significant institutional resistance to the appropriateness of using the criminal law in general, and homicide charges in particular in this type of situation. Judicial review
of the coroner
's inquest
persuaded the Director of Public Prosecutions
to bring manslaughter charges against P&O European Ferries and seven employees, but the trial judge ruled that there was no evidence that one sufficiently senior member of the company’s management could be said to have been reckless.
A subsequent appeal confirmed that corporate manslaughter is a charge known to English criminal law, and with the revival of gross negligence
as a mens rea
for manslaughter, it was thought that prosecutions might succeed. However, a prosecution of Great Western Trains
following the Southall rail crash
collapsed because "the Crown was not in a position to satisfy the doctrine of identification" (Turner J). Only the company itself and the train driver, Mr Larry Harrison, were prosecuted. Since the train driver is not someone of a managerial or directorial level, the case against him was dismissed in the opening arguments. Because the only other defendant was GWT, a corporation, this meant that it was impossible to identify a controlling mind for the purposes of holding an individual personally liable for manslaughter.
In English law, proving corporate manslaughter and securing a conviction of an individual where the corporation involved is a small concern are easier where it is easier to identify a "controlling mind" (in R v OLL Ltd, 1994, about the Lyme Bay canoeing tragedy, managing director Peter Kite was convicted), but efforts to convict people in larger corporate entities tends to fail as the management structure is more diffuse making this identification more difficult. Instead, the prosecution stands more chance of pursuing a case successfully if it prosecutes simply on the grounds of a safety breach under the Health and Safety at Work Act 1974.
Following R v. Prentice, a breach of duty amounts to 'gross negligence' when there is:
The Law Commission
's 1996 report on involuntary manslaughter found that the gross negligence formula overcomes the problems of having to find one particular officer who has the mens rea for the offence and allows emphasis to be placed on the company’s attitude to safety. This question would only arise where the company has chosen to enter a field of activity that carries a risk to others, such as transport, manufacture or medical care. The steps the company has taken to discharge the "duty of safety" and the systems devised for running its business, will be directly relevant. Although only expressed as a provisional view, it is significant that the Law Commission echoes here the recognition of corporate safety systems voiced in the Seaboard case. Thus, a real tension is exposed between the paradigm of criminal culpability based on individual responsibility and the increasing recognition of the potential for harm inherent in large scale corporate activity.
The government issued a consultation paper in 2000, proposing reforms to the law to implement the recommendations of the Law Commission. A draft Corporate Manslaughter Bill
was published in March 2005, and the Queen's Speech on 17 May 2005 included a reference to an Act of Parliament
to be passed in 2005/6 to widen the scope for prosecutions for corporate manslaughter.
by Home Secretary
John Reid
on 20 July 2006 to create new offences of corporate manslaughter, in England and Wales
, and corporate homicide, in Scotland. Originally, the Bill proposed that the offence would require a company's or organisation's activities to be so managed or organised by its senior managers as to cause a person's death, and to amount to a "gross breach" of a duty of care
owed to the deceased. The requirement for the failure of management or organisation to have been "by its senior managers" was dropped in Standing Committee
. The Bill also sought to abolish the common law offence of manslaughter by gross negligence so far as it applies to corporations. A juristic person cannot be imprisoned, but the penalty would be an unlimited fine as for the existing common law offence. The Bill received royal assent
on the 26th July 2007, becoming the Corporate Manslaughter and Corporate Homicide Act 2007
. The Act came into force on the 6 April 2008. On 15 November 2007, the Sentencing Guidelines Council
issued a consultative document recommending a starting point of a fine of 5% of turnover
for a first offence with a not guilty plea
, rising to 10% of turnover.
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, being an act of homicide
Homicide
Homicide refers to the act of a human killing another human. Murder, for example, is a type of homicide. It can also describe a person who has committed such an act, though this use is rare in modern English...
committed by a company or organisation. In general, in English criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, a juristic person is in the same position as a natural person
Natural person
Variously, in jurisprudence, a natural person is a human being, as opposed to an artificial, legal or juristic person, i.e., an organization that the law treats for some purposes as if it were a person distinct from its members or owner...
, and may be convicted for committing many offences. The Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
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.
Theory and historical development
The common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
test to impose criminal responsibility on a company only arises where a person's gross negligence
Gross negligence
Gross negligence is a legal concept which means serious carelessness. Negligence is the opposite of diligence, or being careful. The standard of ordinary negligence is what conduct one expects from the proverbial "reasonable person"...
has led to another person's death and (under the "identification doctrine") that person is a "controlling mind", whose actions and intentions can be imputed
Imputation (law)
In law, the principle of imputation or attribution underpins the concept that ignorantia juris non excusat—ignorance of the law does not excuse. All laws are published and available for study in all developed states...
to the company (that is, a person in control of the company's affairs to a sufficient degree that the company can fairly be said to think and act through him). This is tested by reference to the detailed work patterns of the manager, and the job title or description given to that person is irrelevant, but there is often no single person who acts as a "controlling mind", particularly in large companies, and many issues of health and safety are delegated to junior managers who are not "controlling minds".
On 6 March 1987, 193 people died when the Herald of Free Enterprise capsized. Although individual employees failed in their duties, the Sheen Report severely criticised the attitude to safety prevalent in P&O
Peninsular and Oriental Steam Navigation Company
The Peninsular and Oriental Steam Navigation Company, which is usually known as P&O, is a British shipping and logistics company which dated from the early 19th century. Following its sale in March 2006 to Dubai Ports World for £3.9 billion, it became a subsidiary of DP World; however, the P&O...
, stating:
There was significant institutional resistance to the appropriateness of using the criminal law in general, and homicide charges in particular in this type of situation. Judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of the coroner
Coroner
A coroner is a government official who* Investigates human deaths* Determines cause of death* Issues death certificates* Maintains death records* Responds to deaths in mass disasters* Identifies unknown dead* Other functions depending on local laws...
's inquest
Inquest
Inquests in England and Wales are held into sudden and unexplained deaths and also into the circumstances of discovery of a certain class of valuable artefacts known as "treasure trove"...
persuaded the Director of Public Prosecutions
Director of Public Prosecutions
The Director of Public Prosecutions is the officer charged with the prosecution of criminal offences in several criminal jurisdictions around the world...
to bring manslaughter charges against P&O European Ferries and seven employees, but the trial judge ruled that there was no evidence that one sufficiently senior member of the company’s management could be said to have been reckless.
A subsequent appeal confirmed that corporate manslaughter is a charge known to English criminal law, and with the revival of gross negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
as a mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
for manslaughter, it was thought that prosecutions might succeed. However, a prosecution of Great Western Trains
Great Western Trains
Great Western Trains was a UK train company created in the mid 1990s as part of the privatisation of British Rail. It was one of the first two passenger companies to be privatised, passing into private ownership along with South West Trains on 4 February 1996....
following the Southall rail crash
Southall rail crash
The Southall rail crash was an accident on the British railway system that occurred on 19 September 1997, on the Great Western Main Line at Southall, west London. Seven people were killed and 139 injured...
collapsed because "the Crown was not in a position to satisfy the doctrine of identification" (Turner J). Only the company itself and the train driver, Mr Larry Harrison, were prosecuted. Since the train driver is not someone of a managerial or directorial level, the case against him was dismissed in the opening arguments. Because the only other defendant was GWT, a corporation, this meant that it was impossible to identify a controlling mind for the purposes of holding an individual personally liable for manslaughter.
In English law, proving corporate manslaughter and securing a conviction of an individual where the corporation involved is a small concern are easier where it is easier to identify a "controlling mind" (in R v OLL Ltd, 1994, about the Lyme Bay canoeing tragedy, managing director Peter Kite was convicted), but efforts to convict people in larger corporate entities tends to fail as the management structure is more diffuse making this identification more difficult. Instead, the prosecution stands more chance of pursuing a case successfully if it prosecutes simply on the grounds of a safety breach under the Health and Safety at Work Act 1974.
Following R v. Prentice, a breach of duty amounts to 'gross negligence' when there is:
The Law Commission
Law Commission
A Law Commission or Law Reform Commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal changes or restructuring...
's 1996 report on involuntary manslaughter found that the gross negligence formula overcomes the problems of having to find one particular officer who has the mens rea for the offence and allows emphasis to be placed on the company’s attitude to safety. This question would only arise where the company has chosen to enter a field of activity that carries a risk to others, such as transport, manufacture or medical care. The steps the company has taken to discharge the "duty of safety" and the systems devised for running its business, will be directly relevant. Although only expressed as a provisional view, it is significant that the Law Commission echoes here the recognition of corporate safety systems voiced in the Seaboard case. Thus, a real tension is exposed between the paradigm of criminal culpability based on individual responsibility and the increasing recognition of the potential for harm inherent in large scale corporate activity.
The government issued a consultation paper in 2000, proposing reforms to the law to implement the recommendations of the Law Commission. A draft Corporate Manslaughter Bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
was published in March 2005, and the Queen's Speech on 17 May 2005 included a reference to an Act of Parliament
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
to be passed in 2005/6 to widen the scope for prosecutions for corporate manslaughter.
New legislation from 2008
A Corporate Manslaughter and Corporate Homicide Bill was introduced to the House of CommonsBritish House of Commons
The House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 650 members , who are known as Members...
by Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
John Reid
John Reid (politician)
John Reid, Baron Reid of Cardowan, PC is a British politician, who served as a Labour Party Member of Parliament and cabinet minister under Tony Blair, most notably as Defence Secretary and then Home Secretary...
on 20 July 2006 to create new offences of corporate manslaughter, in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, and corporate homicide, in Scotland. Originally, the Bill proposed that the offence would require a company's or organisation's activities to be so managed or organised by its senior managers as to cause a person's death, and to amount to a "gross breach" of a duty of care
Duty of care
In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant...
owed to the deceased. The requirement for the failure of management or organisation to have been "by its senior managers" was dropped in Standing Committee
Standing Committee
In the United States Congress, standing committees are permanent legislative panels established by the United States House of Representatives and United States Senate rules. . Because they have legislative jurisdiction, standing committees consider bills and issues and recommend measures for...
. The Bill also sought to abolish the common law offence of manslaughter by gross negligence so far as it applies to corporations. A juristic person cannot be imprisoned, but the penalty would be an unlimited fine as for the existing common law offence. The Bill received royal assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
on the 26th July 2007, becoming the Corporate Manslaughter and Corporate Homicide Act 2007
Corporate Manslaughter and Corporate Homicide Act 2007
The Corporate Manslaughter and Corporate Homicide Act 2007 is an Act of the Parliament of the United Kingdom that seeks to broaden the law on corporate manslaughter in the United Kingdom...
. The Act came into force on the 6 April 2008. On 15 November 2007, the Sentencing Guidelines Council
Sentencing Guidelines Council
The Sentencing Guidelines Council was a non-departmental public body of the United Kingdom, created by s.167 of the Criminal Justice Act 2003. It gave authoritative guidance on sentencing to the courts of England and Wales...
issued a consultative document recommending a starting point of a fine of 5% of turnover
Revenue
In business, revenue is income that a company receives from its normal business activities, usually from the sale of goods and services to customers. In many countries, such as the United Kingdom, revenue is referred to as turnover....
for a first offence with a not guilty plea
Plea
In legal terms, a plea is simply an answer to a claim made by someone in a civil or criminal case under common law using the adversary system. Colloquially, a plea has come to mean the assertion by a criminal defendant at arraignment, or otherwise in response to a criminal charge, whether that...
, rising to 10% of turnover.
External links
- The Crown Prosecution ServiceCrown Prosecution ServiceThe Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
website provides more information at http://www.cps.gov.uk/legal/section5/chapter_b.html - Draft bill and consultation paper (published by the Home OfficeHome OfficeThe Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...
, 23 March 2005) - CCA - Manslaughter Cases - Acquittals of companies, directors etc since 2005
- History of passage through Parliament, UK Parliament website, accessed 17 October 2007
- Mark Thomas on Corporate Killing
- Corporate manslaughter: legal Q&A, resource including audio guides to new law and latest news