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Consultation Paper on Corporate Killing

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Consultation Paper on Corporate Killing ____________________ CONSULTATION PAPER ON CORPORATE KILLING __________________ (LRC CP 26 - 2003) IRELAND The Law Reform Commission 35-39 Shelbourne Road, Ballsbridge, Dublin 4 © Copyright The Law Reform Commission 2003 First Published October 2003 ISSN 1393 – 3140 ii THE LAW REFORM COMMISSION Background The Law Reform Commission is an independent statutory body whose main aim is to keep the law under review and to make practical proposals for its reform. It was established on 20 October 1975, pursuant to section 3 of the Law Reform Commission Act 1975. The Commission’s Second Programme for Law Reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas in December 2000. The Commission also works on matters which are referred to it on occasion by the Attorney General under the terms of the 1975 Act. To date the Commission has published 69 Reports containing proposals for reform of the law; 11 Working Papers; 25 Consultation Papers; a number of specialised Papers for limited circulation; An Examination of the Law of Bail; and 23 Reports in accordance with section 6 of the 1975 Act. A full list of its publications is contained in the Appendix to this Consultation Paper. Membership The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are: President The Hon Mr Justice Declan Budd, High Court Full-time Commissioner Patricia T Rickard-Clarke, Solicitor Part-time Commissioner Dr Hilary A Delany, Barrister-at-Law Senior Lecturer in Law, Head of Law School, Trinity College Dublin iii Part-time Commissioner Professor Finbarr McAuley, Jean Monnet Professor of European Criminal Justice, University College Dublin Part-time Commissioner Marian Shanley, Solicitor Secretary John Quirke Research Staff Director of Research Raymond Byrne BCL, LLM, Barrister- at-Law Legal Researchers Deirdre Ahern LLB, LLM (Cantab), Solicitor Simon Barr LLB (Hons), BSc Patricia Brazil LLB, Barrister-at-Law Ronan Flanagan LLB, LLM (Cantab) Glen Gibbons BA, LLB (NUI), LLM (Cantab) Claire Hamilton LLB (Ling Franc), Barrister-at-Law Darren Lehane BCL, LLM (NUI) Trevor Redmond LLB, MPhil, LLM (Cantab) Eadaoin Rock LLB, LLM (Cantab) Jennifer Schweppe BCL (Euro) Administration Staff Project Manager Pearse Rayel Legal Information Marina Greer BA, H Dip LIS Manager Cataloguer Eithne Boland BA (Hons) H Dip Ed, H Dip LIS Higher Clerical Officer Denis McKenna iv Private Secretary Liam Dargan to the President Clerical Officers Alan Bonny Debbie Murray Principal Legal Researchers on this Consultation Paper G Brian Hutchinson BCL, LLM, DAL, FCIArb, Barrister-at-Law, Senior Lecturer and Associate Dean, Faculty of Law, University College Dublin Deirdre Ahern LLB, LLM (Cantab), Solicitor Other Legal Researchers involved with this Consultation Paper Simon Barr LLB (Hons), BSc Nessa Cahill LLB, LLM (Bruges), Barrister-at-Law Contact Details Further information can be obtained from: The Secretary The Law Reform Commission 35-39 Shelbourne Road Ballsbridge Dublin 4 Telephone (01) 637 7600 Fax No (01) 637 7601 E-mail [email protected] Website www.lawreform.ie v vi ACKNOWLEDGMENTS The Commission would like to thank Professor David Gwynn Morgan for his invaluable assistance in preparing this Consultation Paper for publication. The Commission would also like to thank the following people who offered advice and assistance: Paul Appleby, the Director of Corporate Law Enforcement Tom Beegan, Chief Executive of the National Authority for Occupational Safety and Health Dermot Carey, Construction Industry Federation Joe Costello TD, Labour Party Spokesperson on Justice Marie Daly, Irish Business and Employers’ Confederation David Gormley, Office of the Director of Public Prosecutions Michael Henry, Director of Operations (Chief Inspector) of the National Authority for Occupational Health and Safety Martin Lynch, Health and Safety Authority Policy Liaison Section, Department of Enterprise, Trade and Employment Peter McCabe, Construction Industry Federation Kevin O’Connell, Legal Advisor to the Office of Corporate Law Enforcement Michael O’Neill, Legal Advisor to the National Authority for Occupational Safety and Health Susan Thornber, Chief Executive of the Institute of Directors in Ireland Pat Walsh, Construction Industry Federation Tom Walsh, former Director General of the National Authority for Occupational Safety and Health. Full responsibility for this publication, however, lies with the Commission. vii viii TABLE OF CONTENTS INTRODUCTION.......................................................................................................... 1 CHAPTER 1 SCOPE AND CONTEXT OF THE DEBATE .............................. 5 A Introduction........................................................................................................... 5 B The Need for Review............................................................................................ 5 C Relevant Issues ................................................................................................... 12 (1) The Role of the Criminal Law .................................................................... 12 (2) The Criminal Liability of Corporations ...................................................... 14 D Why Prosecute Corporations?............................................................................. 15 E Can Corporations Suffer Criminal Sanction? ..................................................... 18 F How Can Corporations be made Criminally Liable?.......................................... 19 (1) Vicarious Liability ...................................................................................... 20 (2) Strict Liability ............................................................................................. 22 (3) The Identification Doctrine......................................................................... 23 (4) Organisational Liability .............................................................................. 31 (5) Reactive Liability........................................................................................ 33 (6) Power and Acceptance................................................................................ 34 (7) Aggregation ................................................................................................ 35 (8) Flexible Attribution..................................................................................... 37 CHAPTER 2 THE CURRENT LAW ON CORPORATE KILLING.............. 39 A Introduction......................................................................................................... 39 B Corporations ....................................................................................................... 39 (1) What is a Corporation? ............................................................................... 39 (2) Corporations as Legal Persons.................................................................... 41 (3) Corporate Governance and Risk Management............................................ 44 (4) Appearance and Representation in Court.................................................... 46 (5) Dissolution and Reconstitution and Lifting the Veil of Incorporation........ 46 (6) Restriction and Disqualification of Directors.............................................. 48 (7) Insurance and Indemnity............................................................................. 52 (8) Investigating Corporate Activity................................................................. 53 (9) The Privilege Against Self-Incrimination ................................................... 55 C Criminal Liability under the Health and Safety Acts.......................................... 56 (1) The Role of the Criminal Law in Promoting Safety and Preventing Death ......................................................................................................... 56 (2) The Safety, Health and Welfare at Work Act 1989 .................................... 58 (3) The Health and Safety Authority ................................................................ 61 (4) Section 48(17) of the Safety, Health and Welfare at Work Act 1989......... 62 (5) Penalties for Health and Safety Offences in General.................................. 64 (6) The Liability of Directors, Managers, Secretaries and Similar Officers under the Health and Safety Acts................................................................ 67 (7) Remedial Orders and Prohibition Orders.................................................... 69 (8) Costs ......................................................................................................... 70 (9) Special Reports and Inquiries ..................................................................... 70 D Civil Liability for Homicide ............................................................................... 71 ix (1) Actions in Tort and Contract....................................................................... 71 (2) Product Liability ......................................................................................... 81 E The Corporate Manslaughter Bill 2001 .............................................................. 82 (1) Management and Organisational Failure .................................................... 84 (2) Liability of Directors, Managers, Secretaries, other Officers and Employees..................................................................................................
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