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Durham E-Theses Durham E-Theses An analysis of the Corporate Manslaughter and Corporate Homicide Act (2007): A Badly Flawed Reform? HAIGH, BENJAMIN,EDWARD How to cite: HAIGH, BENJAMIN,EDWARD (2012) An analysis of the Corporate Manslaughter and Corporate Homicide Act (2007): A Badly Flawed Reform?, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/3518/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 Durham University School of Law Masters of Jurisprudence An analysis of the Corporate Manslaughter and Corporate Homicide Act (2007): A Badly Flawed Reform? Benjamin Edward Haigh LL.M. Solicitor 23rd December 2011 Student number: - 000380026 Contents Page Contents i Declaration viii Acknowledgments ix Introduction 1 Chapter One – The Basis of Corporate Criminal Liability 8 1.1. Separate Legal Personality 9 1.1.1. Why do we punish companies? 12 1.2. Corporate criminal liability and the emergence of the “Directing Mind and Will” theory within criminal and civil law 15 1.2.1. The birth of the Directing Mind and Will theory 17 1.2.2. Procedural Obstacles 24 1.2.3. The landmark 1944 cases 25 1.2.4. Lord Denning intervenes with “medieval anthropomorphism” 29 1.2.5. A key House of Lords decision – Tesco Supermarkets Ltd. v. Nattrass 30 1.2.6. More recent Appellate Court considerations upon the Directing Mind and Will Doctrine 36 1.2.7. The Directing Mind and Will on the sidelines? 42 i 1.3. Conclusion 48 Chapter Two - Successful and unsuccessful prosecutions for Corporate Manslaughter 51 2.1. The common law offence of manslaughter 52 2.1.1. A duty of care 54 2.1.2. The breach of that duty 54 2.1.3. The death of the victim was caused as a result of the breach of the duty 55 2.1.4. The breach was so gross that it would substantiate a criminal conviction 55 2.2. Successful prosecutions for Corporate Manslaughter 56 2.3. Unsuccessful prosecutions 59 2.3.1. Herald of Free Enterprise (1987) 60 2.3.2. Kings Cross Fire (1987) 64 2.3.3. Piper Alpha Oil Platform Disaster (1988) 64 2.3.4. Clapham Rail Disaster (1988) 65 2.3.5. Marchioness Disaster (1989) 66 2.3.6. Southall Rail Disaster (1997) 68 2.3.7. Paddington Train Crash (Ladbroke Grove) (1999) 74 2.3.8. Hatfield Rail Disaster (2000) 76 ii 2.3.9. Potters Bar Rail Disaster (2002) 78 2.3.10. Legionnaire’s disease outbreak – Barrow in Furness (2002) 82 2.4. Conclusion 84 Chapter Three - The road to reform 87 3.1. The Law Commission Consultation Paper and Report 88 3.1.1. Law Commission Report (1996) 89 3.1.2. The Law Commission considers alternatives bases of liability 91 3.1.2.1. Vicarious Liability 91 3.1.2.2. The principle of aggregation extending the doctrine of identification 93 3.1.2.3. A new corporate regime? 94 3.1.2.4. The fourth and favoured option – A new offence of corporate killing 94 3.1.2.5. Other issues considered by the Law Commission 98 3.1.2.6. Would this report provide the catalyst for reform? 101 3.2. Progress or lack of progress post Law Commission Report (237) 102 3.2.1. Corporate Homicide Bill 2000 – “10 minute rule” procedure 103 3.3. The Home Office’s proposals – May (2000) 105 3.4. The Government’s draft Bill for reform – March (2005) 108 3.5. Pre-legislative scrutiny of the Government’s draft Bill 114 iii 3.5.1. The title of the new offence 115 3.5.2. Causation 116 3.5.3. The Joint Committee’s view on the “Senior Management Test” 117 3.5.4. Other relevant considerations raised by the Joint Committee 118 3.6. The Government’s response to the pre-legislative scrutiny 121 3.7. Conclusion 126 Chapter Four – The Corporate Manslaughter and Corporate Homicide Act (2007) 127 4.1. The passage of the Corporate Manslaughter and Corporate Homicide Bill 128 4.1.1. Concerns in the House of Commons 129 4.1.2. The House of Lords considers the Bill 133 4.2. The Corporate Manslaughter and Corporate Homicide Act (2007) 135 4.2.1. The offence of Corporate Manslaughter 136 4.2.2. The elements of the offence 137 4.2.2.1. Qualifying Organisation 137 4.2.2.2. A relevant duty of care? 138 4.2.2.3. Causation 140 4.2.2.4. A “gross breach” of the relevant duty of care 142 iv 4.2.2.5. The “senior management” test 143 4.2.3. Other relevant aspects contained within the legislation 145 4.2.3.1. Sentencing Powers under the Act 146 4.2.3.2. Remedial orders/ Publicity orders 146 4.2.3.3. Consent of the DPP to commence proceedings 149 4.2.3.4. No individual liability under this Act 149 4.2.3.5. The Abolition of liability of corporations for manslaughter at common law 150 4.3. Was the Act worth waiting for? 151 4.4. Sentencing Guidelines 154 4.5. The first prosecution – R. v. Cotswold Geotechnical (Holdings) Limited 156 4.5.1. The impact of the first prosecution? 159 4.5.2. The second prosecution – Lion Steel Limited 160 4.6. Conclusion 161 Chapter Five - An alternative approach to corporate liability criminal for manslaughter 163 5.1. The Canadian Approach 164 5.1.1. The identification doctrine in Canada 164 5.2. The Westray Mine Disaster (1992) 167 v 5.2.1. The criminal proceedings 167 5.2.2. The Inquiry 169 5.3. Reforming the Canadian approach to Corporate Criminal Liability 170 5.3.1. Bill C-45 – An Act to Amend the Criminal Code 171 5.3.2. Bill C-45 – The key elements 172 5.3.3. The first prosecutions under Bill C-45 176 5.3.4. Sentencing under Bill C-45 178 5.4. The Canadian view of the position in the United Kingdom 179 5.5. Conclusion 179 Chapter Six - Conclusion 182 Bibliography Books 187 Articles and Journals 191 Internet sources 207 Government/ Consultation papers 215 Parliamentary documents 216 Law Commission 217 vi Newspapers 218 Courses 219 vii Declaration The copyright of this thesis rests with the author. No quotation from it should be published without the prior written consent and information derived from it should be acknowledged. viii Acknowledgments I would like to thank my supervisor, Mr. Chris Riley, for his kind assistance and very helpful comments throughout the preparation of this thesis. In addition, I would like to thank Catherine Dale of Newcastle University Law Library for her kind assistance with Hansard. I am grateful to the University of Toronto and to the University of Cape Town for allowing me access to their respective Law Libraries. I am very grateful to my good friend Simon Hanson for his assistance. Finally, I am grateful for the continuing support from my family and fiancée. ix Introduction An analysis of the Corporate Manslaughter and Corporate Homicide Act (2007): A Badly Flawed Reform? A conviction of a large corporation for manslaughter was in practice impossible. This statement was accurate when the prosecution was mounted using the old identification/ “directing mind and will” doctrine. The position in relation to prosecutions against small companies was very different. It was relatively straight- forward to successfully prosecute a “one-man band” style company due to its simple corporate structure. The Corporate Manslaughter and Corporate Homicide Act 20071 (hereafter “CMCHA”) was enacted to resolve this issue. It was the desire of Parliament that this Act would eliminate the difficulties that were faced by the courts when dealing with large complex corporate structures. This thesis will consider whether Parliament’s desire has been achieved or whether the same problems associated with the old doctrine still exist. It is arguable that the CMCHA has simply provided a gloss upon the old identification doctrine and that we now have an “identification-plus” doctrine in the form of the “senior management test”. It is questionable whether the new test would be any more effective when tested against a large corporate structure, than the old doctrine. 1 Corporate Manslaughter and Corporate Homicide Act (2007) (c.19) 1 This thesis is structured into five chapters. The first four chapters will develop a key part of the progression of the law of corporate manslaughter. The fifth chapter will consider the approach taken by another jurisdiction, Canada. There are other relevant approaches that can be taken in relation to the regulation of companies, whether criminal or non-criminal strategies such as corporate governance and corporate social responsibility, but both are beyond the remit of this thesis. The issue of individual liability does feature at certain points in the thesis and is referred to when necessary, but it is not the focus of the thesis.
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