DOCSLIB.ORG

Corporate Manslaughter: Where Are We Now?

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Corporate Manslaughter: Where Are We Now? CORPORATE MANSLAUGHTER: WHERE ARE WE NOW? By Prashant Popat “This Government is committed to delivering safe and secure communities, at home and in the workplace, and to a criminal justice system that commands the confidence of the public. A fundamental part of this is providing offences that are clear and effective. The current laws on corporate manslaughter are neither, as a number of unsuccessful prosecutions over the years stand testament.” (Charles Clarke, March 2005) 1. Reforming the laws on corporate manslaughter were Labour Party pledges in the manifestos of both 1997 and 2001. Shortly before last year’s election the Government published its draft Bill to do just that. It has now undergone scrutiny by the Home Affairs and Works and Pensions Select Committees. In March 2006, the Government published its response to the Committees’ recommendations, concluding: “The Committees urged the Government to proceed with legislation this Parliamentary session. We remain strongly committed to reforming this important area of the law and intend to legislate without delay as soon as Parliamentary time allows.” 2. In July of last year, the bill was finally laid before Parliament and is entering the final phases of enactment. This paper considers the proposed legislation, with particular regard to whether it will achieve the improvement of UK health and safety which must be its primary aim. The second half of this paper will consider how the draft Bill reflects a broader trend for more rigorous health and safety enforcement in recent years and identifies how companies should prepare for its implementation. The first step is to consider the existing law on involuntary manslaughter. 1 The current law on involuntary manslaughter 3. Corporations can be liable for involuntary manslaughter if an individual is identified as the embodiment of the company, its directing mind, and that individual himself is guilty of manslaughter. Where such an individual is convicted the company can be regarded as having acted recklessly or in a grossly negligent manner and to have caused the death. The requirement to identify such an individual is known as the doctrine of “identification”. 4. The task of identifying an individual in a substantial corporation who can be described as a directing mind, who was grossly negligent and whose negligence actually caused the death in question can be very difficult, due in no small part to the skill of company secretaries in setting up complex corporate structures. 5. In such corporations the power and control usually rests with board directors or very senior managers. They are unlikely to have sufficient involvement in the day to day activities of the corporation to enable the prosecution to show they were responsible for the relevant management or system failure. The more diffuse the corporate structure, the wider the company’s activities and the larger the organisation the harder it is to join the necessary links in the chain to mount a successful prosecution. 6. The consequence of these difficulties is that there have been few prosecutions for corporate manslaughter. Between 1992 and 2005 3,425 workers were killed. Yet over that period there have been only 34 prosecutions for work-related manslaughter. Of these, only 7 organisations were convicted of gross negligence manslaughter; all of them were small companies.i 7. The number of higher profile disasters where there was either no prosecution for corporate manslaughter or no successful prosecution has led to much public 2 dissatisfaction. The Herald of Free Enterprise, the Kings Cross Fire, Clapham, Southall, Ladbroke Grove and, most recently, Hatfield are but some examples. Demands for change • Law Commission to publish its Proposals in a report of 1996, no. 237 “Legislating the code: involuntary manslaughter” 8. These difficulties led the Law Commission to publish its Proposals in a report of 1996, no. 237 “Legislating the code: involuntary manslaughter”. These proposals recommended a new offence of corporate killing with the focus sharpened on the corporate entity itself. Its basic premise was that if it could be said that the corporation was (grossly) negligent in the way it might be in a civil claim, the corporation could be liable for the offence of corporate killing. The essential requirement of the proposed offence was that there should have been a management failure which caused death. 9. The Commission’s proposals received much publicity and appeared to have political support yet were not taken beyond the stage of being proposals. • Attempts to alter the test: Southall and Hatfield 10. Following the Southall crash in 1997 the train operator, GWT, was prosecuted for corporate manslaughter. The prosecution sought to argue that the elements of the offence of corporate manslaughter had changed following a decision of the House of Lordsii in the prosecution of an individual for manslaughter. It was argued that there was no longer any need to identify a controlling mind who was also guilty of manslaughter. It was possible, the prosecution contended, to convict the company if there had been a serious breach of its personal duty to the deceased. This was an attempt to remove the problem caused by the identification doctrine – the prosecution essentially wanted to be able to bring criminal charges in the same way as a plaintiff could bring civil proceedings. The prosecution failed at first instance. The Court of Appeal affirmed the lower Court’s decision, preserving the 3 identification principle and the need to establish the guilt of a human individual before a non-human could be convicted.iii 11. In a new attempt to alter the manslaughter test and in light of the rulings in the Southall case that it was still necessary to convict a directing mind, the prosecution following the Hatfield case sought to argue that the directing mind could be somebody in middle management as long as they had autonomy over their role and/or budget. In other words the directing mind could be directing one small part of the operations of the company. The prosecution argued that in the modern commercial world this was a necessary interpretation of the directing mind test where large organizations were often run by separate departments or units. The corporate manslaughter charge against Network Rail was dismissed and, half-way through the trial, the judge held that there was no case for Balfour Beatty to answer on corporate manslaughter. At the time, Mr Justice Mackay stated that the case “continue[d] to underline the pressing need for the long-delayed reform of the law in this area of unlawful killing.” • Increasing demands 12. The failure of the Southall and Hatfield prosecutions has intensified demands from victims for a change in the law of corporate killing. It is believed by a vociferous amalgam of groups, aided and abetted by the press, that there is an urgent need to hold corporations criminally accountable for the consequences of “accidents” and some believe that the threat of such accountability will lead to improved safety. 13. The Government recognised the increasing agitation regarding the apparent inability to prosecute large corporations for their involvement in various high- profile disasters. This led to the 2000 proposals. 4 A history of the draft Bill • The 2000 Home Office proposals 14. The 2000 Home Office proposals on involuntary homicide proposed new manslaughter offences and other associated offences. The proposals built upon the report of the Law Commission. They concerned the offences of involuntary manslaughter against the individual as well as corporations. • Proposed additional criminal offence so that officers of the undertaking who contributed substantially to the management failure resulting in death were to be liable to a penalty of imprisonment or a fine in separate criminal proceedings. 15. Under the 2000 proposals it was proposed that, where an undertaking is guilty of corporate killing, there should be an additional criminal offence so that officers of the undertaking who contributed substantially to the management failure resulting in death were to be liable to a penalty of imprisonment or a fine in separate criminal proceedings. There was concern that the new proposals would lack force without the availability of a punitive sanction to be used against individuals. • Impact assessment in late 2002 by the Home Office Sentencing and Offences Unit 16. In late 2002, the Home Office Sentencing and Offences Unit conducted an assessment of the potential effects of the proposed changes on the private sector by consulting with selected industries with a fatal and major injuries rate of over 250 per 100,000 employees over the last five years. During this assessment it was indicated that further consideration had been given to the area of enforcement against companies and their officers. Consequently there were two significant changes in the Government’s policy proposals. First, the proposal that when an undertaking is found guilty of manslaughter, individual directors or other officers can be held individually liable was removed. Secondly, the proposal that officers of a corporation who contributed to the management failure could be disqualified from holding a management post anywhere in England was similarly abandoned. 5 • The Select Committees of the Department of Work and Pensions and the Department of Home Affairs Corporate Manslaughter sub-committee. 17. The Select Committees of the Department of Work and Pensions and the Department of Home Affairs set up a Corporate Manslaughter sub-committee and over 6 sessions took evidence from 29 organisations and individuals on the then draft Bill which had been produced. Those giving evidence included industry bodies trades unions, pressure groups, lawyers, academics and the CBI. They also received 163 written submissions. 18. The Committee published its 117 page final report in December 2005. Having welcomed the Government’s proposal to reform the law of manslaughter, the Committee recommended a number of changes to the proposals contained in the draft Bill.
Load more

Recommended publications
  • 1 the Corporate Agent in Criminal
    1 THE CORPORATE AGENT IN CRIMINAL LAW – AN ARGUMENT FOR COMPREHENSIVE IDENTIFICATION MARK DSOUZA* The doctrine of identification is often used to explain how corporations can commit criminal offences in their own right. Courts identify the natural persons who can be said to personify the corporation, and attribute their conduct and mental states to the corporation. However, current versions of the doctrine of identification suffer from several well-documented shortcomings. This paper sets out, and gives serious consideration to, a reformulated version of the identification doctrine that has the potential to addresses many of these shortcomings. In Section I, I explain how the doctrine of identification promotes the sociological legitimacy of corporate criminal law by allowing it to piggyback on the sociological legitimacy of the criminal law as it applies to natural persons. Next, in Section II, I describe the existing versions of the doctrine of identification, and the problems with them. In Section III, I argue that because the various alternatives to the identification doctrine might tend to undermine the sociological legitimacy of corporate criminal law, a suitably reformulated rule of identification would be preferable to abandoning identification altogether. Section IV describes such a reformulation, viz. comprehensive identification (CI). CI would attribute to corporations both the actions, and the mental states, of each of its employees acting in the course of their employment, that is to say, within the scope of their real or ostensible authority. While it would vastly expand the scope of corporate criminal liability, I demonstrate that it would also correct or ameliorate many of the problems that existing versions of the identification doctrine generate.
    [Show full text]
  • Corporate Manslaughter Statistics
    Disclosure Ref: 6 Corporate manslaughter statistics Freedom of Information Act 2000 Request Request. Could you please provide me with: 1. The number of charges brought for corporate manslaughter each year since the introduction of the Act. 2. The names of all organisations charged with corporate manslaughter. 3. Whether charges were also brought under Health and Safety legislation against any of the organisation. If charges were initially brought and then dropped, please confirm this if possible. 4. Whether charges were also brought against Directors or employees of the organisation under either health and safety legislation or for common law manslaughter. If charges were initially brought and then dropped, please confirm this if possible. 5. The outcome of the cases (and the year of the outcome). 6. The sentences in the successful prosecutions. 7. Whether the case has been reported or not. Response The offence of corporate manslaughter (and in Scotland, corporate homicide) was introduced by the Corporate Manslaughter and Corporate Homicide Act 2007. By definition, a charge of corporate manslaughter can only be brought against an organisation (which includes government departments and crown bodies). The 2007 Act effectively absolved organisations of liability for the offence of common law manslaughter; however, individual employees can still be charged with gross negligence manslaughter. Individual employees (and organisation) can similarly be charged over the same underlying incidents leading to the death under the Health and Safety at Work Act 1974. Number of charges brought You have asked for “The number of charges brought for corporate manslaughter each year since the introduction of the Act” (q.
    [Show full text]
  • Care and Corporate Neglect
    CARE AND CORPORATE NEGLECT Corporate Accountability and Adult Safeguarding Edited by Rt Hon Paul Burstow MP 2 CONTENTS CONTRIBUTORS 4 ACKNOWLEDGEMENTS 4 EXECUTIVE SUMMARY 6 BACKGROUND 9 INSTITUTIONAL NEGLECT AND ABUSE 11 CURRENT PROTECTIONS IN DOMESTIC LAW 13 AN INTERNATIONAL PERSPECTIVE 22 CORPORATE LAW 25 LEGISLATING FOR CORPORATE NEGLECT 28 CORPORATE NEGLECT: A POLITICIAN’S PERSPECTIVE 30 CORPORATE RESPONSIBILITY: A PROVIDER’S PERSPECTIVE 34 CORPORATE ACCOUNTABILITY: AN EXPERT’S PERSPECTIVE 36 STRENGTHENING ADULT SERIOUS CASE REVIEWS 39 POLICY RECOMMENDATIONS 44 3 CONTRIBUTORS Former Care Services Minister Rt Hon Paul Burstow MP, Chief Executive of Care Management Group Peter Kinsey, and leading social care consultants Margaret Flynn and Vic Citarella of CPEA Ltd, authors of the Adult Serious Case Review into Winterbourne View Hospital. ACKNOWLEDGEMENTS The editor would very much like to thank Andrew McGuinness and Jenny Ousbey for their invaluable research assistance; David Howarth, Professor Christopher Newdick and Dr Paul Almond of Reading University for their advice as well as Tim Edmonds and Tim Jarrett from the House of Commons Library for their help with factual content. Special thanks must also go to our contributors Peter Kinsey, Margaret Flynn and Vic Citarella for their time, support and helpful advice. Cover photo from SalFalko's, Flickr 2012 http://www.flickr.com/photos/safari_vacation/8304699932/in/ photostream Published by Rt Hon Paul Burstow MP, January 2013. 4 5 EXECUTIVE SUMMARY Winterbourne View was a shocking example of what happens when people with learning disabilities are failed by bad management and poor care There is already law on corporate manslaughter.....I think there is a strong case for extending the scope to wilful neglect so there is accountability for when care goes drastically wrong.1 This briefing paper intends to explore how corporate bodies could be held criminally responsible for abuse and neglect that takes place in hospitals and care homes.
    [Show full text]
  • The Impact of the Corporate Manslaughter and Corporate Homicide Act 2007 on the Construction Industry in the UK
    The Impact of the Corporate Manslaughter and Corporate Homicide Act 2007 on the Construction Industry in the UK Andrew David Hopwood, and Francis K Adams, PhD Francis T Edum-Fotwe, PhD Drexel University Loughborough University, Loughborough, Philadelphia Pennsylvania Leicestershire LE11 3TU, United Kingdom The Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6th April 2008. The legislation clarifies the criminal liabilities of companies and makes it easier to prosecute them where serious health and safety management failures lead to workplace fatalities. This paper aims to explore the provisions of the new Act and examine its impact and significance for construction stakeholders and potential impact on current industry practices in construction. It will also address the socio-economic impact of the Act and fatalities in general. Key words: Construction Fatalities, Workplace Fatalities, Corporate Manslaughter, Corporate Killing, Corporate Homicide Act 2007, Workplace Health and Safety Introduction In the twelve months leading up to the implementation of the Corporate Manslaughter and Corporate Homicide Act 2007, 77 people died on construction sites in the UK. (Glackin 2008) Some argue that this shocking statistic is seen to be „accepted‟ within the construction industry. The Act creates a new statutory offence that aims to bring about justice for those killed on construction sites and help decrease the number of fatalities by making it easier to convict companies that produce fatal accidents. The new legislation means that site deaths will be investigated by the Police with the input of experts such as the Health and Safety Executive (HSE) also harnessed. The Act applies to all companies and corporate bodies operating in the UK, with proceedings being taken by the Crown Prosecution Service in England and Wales, the Public Prosecution Service in Northern Ireland and the Procurator Fiscal in Scotland.
    [Show full text]
  • Rethinking the Law on Corporate Manslaughter to Better Reflect the Artificial Legal Existence of Corporations
    Plymouth Law and Criminal Justice Review (2019) ARE CORPORATIONS FREE TO KILL? RETHINKING THE LAW ON CORPORATE MANSLAUGHTER TO BETTER REFLECT THE ARTIFICIAL LEGAL EXISTENCE OF CORPORATIONS 1 Lucy Hooper Abstract This year, 2018, marks the 10 year anniversary of the implementation of the Corporate Manslaughter and Corporate Homicide Act 2007. It is, therefore, an appropriate time to review its effectiveness and consider whether the Act has achieved what it set out to. Its introduction was a parliamentary attempt to address the key defects’2 under the previous identification doctrine, where a company’s liability was dependant on gross negligent manslaughter being sought in the relevant directing mind and will. This article will highlight the inadequacies of the former regime and review to what extent the 2007 Act has resolved them. Importantly, it references the recent Grenfell Tower disaster, which, if corporate manslaughter charges are pursued, will be the Act’s biggest and most public challenge to date. Keywords: corporate manslaughter, Corporate Manslaughter and Corporate Homicide Act 2007, gross negligent manslaughter Introduction Companies, as a result of Salomon3, are ‘distinct and independent’4 entities separate from their members. However, in reality, ‘corporations have no consciences, no beliefs, no feelings, no thoughts, no desires’ and merely ‘help structure and facilitate the activities of human beings’. 5 Consequently, under the original common law models, corporate criminal liability had to be found in individuals and then ‘attributed’ to the company. Attribution in the UK, commonly takes two forms. The first, vicarious liability, imposes liability on corporations ‘for the criminal acts of employees…acting within the scope of their employment’.6 It is, ‘wholly derivative’.7 While the principle is easily applied, ‘a corporation is not…so abstract, impalpable 1 Lucy graduated with a first class LLB honours and was awarded the Womble Bond Dickinson prize for the best student undertaking commercial law.
    [Show full text]
  • 3. Corporate Manslaughter and How to Handle a Regulatory Investigation
    SYMPOSIUM SERIES NO. 151 # 2006 IChemE CORPORATE MANSLAUGHTER AND HOW TO HANDLE A REGULATORY INVESTIGATION FOLLOWING SERIOUS INJURY OR DEATH Gary Lewis Solicitor Safety, Health and Environment Group, Hammonds Trinity Court, 16 John Dalton Street, Manchester, M60 8HS; Tel: 0870 839 5373, Fax: 0870 460 2910, Email: [email protected] The paper will discuss essential components of the proposed offence of Corporate Manslaughter by way of comparison against the existing offence of Involuntary Man- slaughter as it applies to Companies. How the new offence will apply in practice and the ramifications for larger corporations, who to date, have had effective immunity from prosecution. The second half of the paper will endeavour to demystify the conduct of a regulatory investigation and give practical tips on how to exercise a degree of control over the process. CORPORATE MANSLAUGHTER INTRODUCTION Incidents and accidents in the chemical industry tend to have associated with them high degrees of risk, having the potential to result in fatal or serious injuries. Hence even if injury does not result, fines tend to be towards the upper bracket in Magistrates Courts or referred to Crown Courts for sentence, given the obvious degree of risk resulting from deficiencies in management systems. Public demand for accountability of senior management of companies whose activi- ties have been indicative of disregard for health and safety legislation have been fuelled by disasters such as the Herald of Free Enterprise in 1987 and more recently the Southall, Paddington, Ladbroke Grove and Hatfield rail crashes. Deaths arising out of work activity remain at an alarming rate despite concerted targeting of high risk sectors by the enforcement agencies.
    [Show full text]
  • People Do: Exploring the Goals of the United Kingdom's Corporate Homicide Bill Vincent Todarello
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE NYLS Journal of International and Comparative Law Volume 22 Article 31 Issue 1 Issues 1 & 2 2003 Corporations Don't Kill People - People Do: Exploring the Goals of the United Kingdom's Corporate Homicide Bill Vincent Todarello Follow this and additional works at: https://digitalcommons.nyls.edu/ journal_of_international_and_comparative_law Part of the Law Commons Recommended Citation Todarello, Vincent (2003) "Corporations Don't Kill People - People Do: Exploring the Goals of the United Kingdom's Corporate Homicide Bill," NYLS Journal of International and Comparative Law: Vol. 22 : Iss. 1 , Article 31. Available at: https://digitalcommons.nyls.edu/journal_of_international_and_comparative_law/vol22/iss1/31 This Notes and Comments is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Journal of International and Comparative Law by an authorized editor of DigitalCommons@NYLS. CORPORATIONS DON'T KILL PEOPLE - PEOPLE DO: EXPLORING THE GOALS OF THE UNITED KINGDOM'S CORPORATE HOMICIDE BILL A corporation is an abstraction. It is incapable itself of doing any physical act or being in any state of mind. -Lord Diplock' I. INTRODUCTION A corporation is a creature of law, acting as a fictional entity in the eyes of the law. 2 However, a corporation is made up of and run by people, acting as agents of the corporation. 3 These peoples' actions can be criminal in nature and result in death. Consequently, criminal prosecutors seek to punish someone or something for homicide. The capsized Zeebrugge ferry, the King's Cross fire, the Clapham and Paddington Rail crashes, the "Bowtelle"-"Marchioness" boat colli- sion, and the Hillsborough football tragedy all represent recent disas- ters in which the United Kingdom's Director of Public Prosecutions either decided not to prosecute or failed to successfully prosecute the corporations or organizations responsible for many deaths.
    [Show full text]
  • Violence Against the Person
    Home Office Counting Rules for Recorded Crime With effect from April 2021 Violence against the Person Homicide Death or Serious Injury – Unlawful Driving Violence with injury Violence without injury Stalking and Harassment All Counting Rules enquiries should be directed to the Force Crime Registrar Home Office Counting Rules for Recorded Crime With effect from April 2021 Homicide Classification Rules and Guidance 1 Murder 4/1 Manslaughter 4/10 Corporate Manslaughter 4/2 Infanticide All Counting Rules enquiries should be directed to the Force Crime Registrar Home Office Counting Rules for Recorded Crime With effect from April 2021 Homicide – Classification Rules and Guidance (1 of 1) Classification: Diminished Responsibility Manslaughter Homicide Act 1957 Sec 2 These crimes should not be counted separately as they will already have been counted as murder (class 1). Coverage Murder Only the Common Law definition applies to recorded crime. Sections 9 and 10 of the Offences against the Person Act 1861 give English courts jurisdiction where murders are committed abroad, but these crimes should not be included in recorded crime. Manslaughter Only the Common Law and Offences against the Person Act 1861 definitions apply to recorded crime. Sections 9 and 10 of the Offences against the Person Act 1861 gives courts jurisdiction where manslaughters are committed abroad, but these crimes should not be included in recorded crime. Legal Definitions Corporate Manslaughter and Homicide Act 2007 Sec 1(1) “1 The offence (1) An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised - (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.” Capable of Being Born Alive - Infant Life (Preservation) Act 1929 Capable of being born alive means capable of being born alive at the time the act was done.
    [Show full text]
  • 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.
    [Show full text]
  • Corporate Crime a Global Perspective Contents
    Corporate crime A global perspective Contents 05 Key themes 20 Austria 24 Belgium A cross-border guide to 28 Brazil corporate criminal liability 34 China and enforcement 38 France 42 Germany Society’s relationship with business The risk of criminal enforcement Hong Kong has shifted over recent years, bringing action in many European jurisdictions 46 and the US has long been a reality corporate conduct firmly into the 50 Italy spotlight. Often in response to calls for multinational companies. But we are now seeing stronger laws and/or for greater corporate accountability, 54 Japan more enforcement activity in governments and enforcement jurisdictions in Asia, Latin America agencies have increasingly been 58 Netherlands and Africa as well. As such, global turning to the criminal law to hold companies must actively manage their 62 Russia companies liable for misconduct criminal law risks in all regions occurring within their organisations within which they operate. 66 Singapore or for their benefit. Across various With this in mind, we are delighted jurisdictions, lawmakers have to present our overview of the key 70 South Africa introduced a growing number of themes in corporate criminal law offences for which companies can and practice impacting multinationals 76 Spain be prosecuted. And many agencies today, together with a guide to with criminal powers are increasingly corporate criminal liability and 80 Switzerland using them to pursue companies – in enforcement in 17 jurisdictions across the areas of tax, antitrust, anti-bribery the world.
    [Show full text]
  • Corporate Manslaughter: More and Larger Companies Are Due to Pay the Penalty
    Corporate manslaughter: more and larger companies are due to pay the penalty By Jocelyn Ledward The Corporate Manslaughter and Corporate Homicide Act 2007 was introduced in 2008 because there had been few successful prosecutions of corporations under the common law of gross negligence manslaughter (GNM). Under the old law, to find a corporate entity guilty of manslaughter, a jury needed to convict a manager of GNM, then find that manager so senior as to be identified as the “directing mind and will” of the company. This legal framework could not deal with corporate failures leading to disasters such as the capsize of the Herald of Free Enterprise and the Southall rail crash. Corporations could still be prosecuted for breaches of the Health and Safety At Work etc. Act 1974 (HSWA), but offences under that Act do not reQuire proof that the organization was responsible for causing death, so are regarded as much less serious. The new statutory offence of corporate manslaughter (CM) only applies to organisations (not natural persons) and is punishable with an unlimited fine against the organisation. There are a number of elements to the offence. As before, the organization has to owe a duty of care to the deceased (whether an employee or member of the public). The way in which the organization’s activities are managed has to amount to a gross breach of that duty of care. Finally, the way in which the company’s activities are organized by senior management has to be a substantial element in that breach. The conduct of a wide of range of individuals, not just directors, can be taken into account (e.g.
    [Show full text]
  • Print This Article
    Journal of Law & Commerce Vol. 35, No. 1 (2016) ● ISSN: 2164-7984 (online) DOI 10.5195/jlc.2016.117 ● http://jlc.law.pitt.edu CORPORATE MANSLAUGHTER BY INDUSTRIAL ROBOTS AT WORK: WHO SHOULD GO ON TRIAL UNDER THE PRINCIPLES OF COMMON LAW IN AUSTRALIA? S.M. Solaiman This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. This site is published by the University Library System of the University of Pittsburgh as part of its D-Scribe Digital Publishing Program, and is cosponsored by the University of Pittsburgh Press. CORPORATE MANSLAUGHTER BY INDUSTRIAL ROBOTS AT WORK: WHO SHOULD GO ON TRIAL UNDER THE PRINCIPLES OF COMMON LAW IN AUSTRALIA? S.M. Solaiman* ABSTRACT Industrial robots have been increasingly used for decades and the International Federation of Robotics predicts that 1.3 million more of such humanoids will be installed in factories across the globe between 2015 and 2018. While robots are deemed beneficial for industrial production, they pose a serious threat to our health and safety. Robots have killed many people and gravely injured numerous others in different countries. Policymakers around the world remain largely unmoved about resolving the uncertainty over the specificity of which persons should go on trial for such killings. This Article examines the principles of common law governing manslaughter by criminal negligence with particular reference to Australia; however, it will generally apply to other common law countries as well. It finds that while it would be theoretically possible to identify the potential accused of workplace deaths caused by robots, we consider that the common law identification doctrine in practice will be a bar to successful prosecutions against corporate employers given the specific complexities associated with the usage of industrial robots.
    [Show full text]