The Law On Involuntary Manslaughter Needs Reform

. In Particular, The Law On Corporate Manslaughter I Essay, Research Paper

Public

confidence in the law and the judiciary has been seriously affected in the last

few years with a number of disasters where the law of manslaughter, as it

currently stands in England and Wales has failed to lead to any prosecutions.

There has been the growing perception that the law dealing with corporate

manslaughter is ineffective following public inquiries, which have found

serious fault with, and been highly critical of various corporate bodies. It

would seem that as companies grow larger and have more power so there should be

at the same time an increase in the responsibility that these companies have

towards society in general. Therefore just as individuals in society owe a duty

to each other not to unlawfully kill each other so should companies owe that

duty to society as well. [1]Society?s

perception of large companies is such that they are seen as the correct body

which must be blamed rather than individuals when disasters happen.[2]

This can be demonstrated by the action brought by the relatives of the victims

following the sinking of the Herald of Free

Enterprise[3]. The

relatives in this case were seeking primarily the prosecution of P&O and not of the individual

employees involved with the disaster.Under the law in

England and Wales as it currently stands, the method by which companies are

held criminally responsible for manslaughter is that of the doctrine of identification[4].

This involves having to identify someone who is sufficiently senior within the

company who can be said to represent the ?mind and will? of the company. If

this person commits a crime within the course of their employment, that crime,

and the mens rea of it can then be

attributed to the company, which becomes identified with it and can therefore

be held liable. Where this occurs it will then be possible to prosecute both

the individual concerned and the company.There has been

some difficulty by the courts in deciding at exactly what level this directing

mind should be in the company. In the Meridian Global Funds Management Asia Ltd. V

Securities Commission [5]case

the Privy Council held that not every case should be forced into a ?single

formula? of the ?directing mind and will? type but that the way the particular

offence is committed is important. In this case it was held that the investment

manager was of a sufficient senior level to be held responsible. Lord Hoffman

seemed to be arguing that there should be a wider scope for responsibility,

with the main question being, ?whose act (or knowledge, or state of mind) was

for this purpose intended to count as the act of the company?? This would seem

to extend the traditional view of the doctrine of identification, with the idea

being that this particular person was authorized to do this job, and therefore

their acts can be attributed to the company. Each case becomes therefore ? a special

rule of attribution for the particular substantive rule.?[6]

Therefore a person who before could not have been said to be senior enough in

the company could now possess the necessary mens

rea for the crime of corporate manslaughter. However the problem still

remains that a particular person has to be identified within the company whose acts and knowledge can be

attributed to the company as a whole. Often it will also be shown that fault

did not lie with a particular individual but rather with the company itself, in

the form of procedures or safety measures which were not implemented. In the Herald of Free Enterprise case[7] the fact that the prosecution failed was that there was no individual in P&O who held responsibility for

safety and there were no safety policies in place. The Sheen Report[8]

made it clear that the fault for the disaster lay with company policies, or the

lack of them, and that the company was at fault for failure to give clear

safety instructions to its employees. Thus in cases where there is clear

evidence of corporate failure, and a ?disease of sloppiness?[9]

infecting the entire work force, the doctrine of identification prevents any

prosecution from taking place in criminal law, as a single individual (or

individuals) will still need to be shown as having the necessary acts and

knowledge that can be attributed to the company. It is important to note

however that despite the failure of the P&O

case, as expalined above, that Turner J did rule that the indictment for

manslaughter could stand and that future cases should be decided on a case by

case basis.[10] Furthermore

Bingham LJ did rule that he saw, ?no reason in principle why such a charge (corporate manslaughter) should not be

established?[11].More recently

following the Southall Rail Crash

(September 1997) in which seven people died, the Court of Appeal held that the

traditional view regarding the use of the principal of identification remains

the means of bringing about prosecutions for corporate manslaughter[12].

During the trial of Great Western Trains

the trail judge Scott Baker J held that:?? It is a condition precedent to a conviction for manslaughter by

gross negligence for a guilty mind to be proved; and where a non-human

defendant is prosecuted, it may only be convicted via the guilt of a human

being with whom it may be identified.?[13]As a result,

even though a ?serious fault of senior management? had been identified, it was

not possible for the prosecution to prove their case, as no single person could

be found of sufficient seniority (within the identity doctrine) who was

responsible for the ordering of trains to run where safety was lacking. The

Attorney-General sought therefore to have the current position clarified with

two questions being referred to the Court of Appeal, based upon the trial

judges ruling:i.

Can a defendant be properly convicted

of manslaughter by gross negligence in the absence of evidence as to that

defendant?s state of mind? and; ii.

Can a non-human defendant be convicted

of the crime of manslaughter by gross negligence in the absence of evidence

establishing the guilt of an identified human individual for the same?The Appeal Court

agreed with the first question, which meant that the second answer had to be a

negative in that the prerequisite guilt of state of mind had to be established,

with it then only becoming attributed to the company. The Court held that there

had to be an ?identifiable individuals conduct, characterisable as gross

criminal negligence? which then could be attributed to the company. It is however

confusing since the Court also followed Adomako [14]with

the ?objective? gross negligence

test, (with no subjective guilt of mind needing to be proved on behalf of the

defendant) mentioned in the obiter.

It would seem that in order for a persons conduct to be seen as being gross

criminal negligence, one needs to look at the facts that the individual knew or

perhaps was not aware of. If this is the case then one is looking at the state

of mind of the particular individual and to what degree their own knowledge (or

lack of) was of any importance. It would seem that as far as corporate

manslaughter is concerned the crime is not one of strict liability, as there

has to be a ?directing mind? with the necessary mens rea, dependant on individual culpability.It is an area in

which there is some confusion, with the trial judge and the Court of Appeal

coming to different conclusions on what the necessary conditions would be to

establish individual culpability. What seems to be at issue is the use of the

terms describing the state of mind

and mens rea of the defendant. The Court of

Appeal therefore has confirmed the doctrine of identification and restated the

traditional view that:?For a company to be criminally liable for manslaughter it is

required that the mens rea and the

actus reus of manslaughter should be established? against those who were to be

identified as the embodiment of the company itself.?[15]Following on the

Meridian decision it seemed that for

time prerequisite of a ?directing mind? may have begun too shift significantly,

however this would now not seem to be the case. It seems that Meridian has been distinguished from

other cases in so far that it related to the interpretation of a statutory

provision, yet the Court has rejected that it indicated any move away from the

traditional position. In fact the Court argued that the decision relied on the

identification principle and that while the person identified as the ?directing

mind? was not as senior as expected, he was nevertheless at management level[16].

From what has

been discussed above, it is evident that there are problems with prosecuting a

company where there has been management

failure in the prevention of causing death or injury. The first difficulty

is in the identification of an individual who is seen as being the ?embodiment

of the company? and more importantly, ? who is culpable?[17].

Secondly it may not be possible to prove the necessary mens rea of the individual (or individuals) in the particular case

which needs to be attributed to the company before the company can be held to

be criminally liable. The notion of management failure forms the focus of

the proposals submitted by the Law Commission and accepted by the Government.

The offence of corporate manslaughter (renamed corporate killing) would therefore be committed if there was a

?management failure? falling far below what can reasonably be expected of the

corporation in the circumstances? which in turn lead to a persons death[18].

The most important concept here is that of the notion of management failure, which refers to the acts of people in the

company, failing to ensure the existence of structures (or policies) that would

prevent death or injury occurring to employees or members of the public. This

offence does not therefore require reference to the common law notion of mens

rea, in its attempt to deal with the unique nature of corporate killing, by

focusing instead on the manner in which the company is organized and the

policies implemented (or not). There is therefore no longer the need to

identify particular individuals and their actions as has been and is still the

present situation. These arguments that a corporate bodies should be held

liable are largely based upon ?public policy?[19]

as stated at the beginning of the essay.?An immediate problem with the proposals as

they stand is that in some respects similar arguments to those that are used at

present could be raised in defense of a company. Which policies or management

failures form part of that particular company? This is especially be true of

large multi-national companies or corporations consisting of smaller companies

on the ground. It is however widely acknowledged that the proposals are broadly

to be welcomed despite problems with detail as they could help to clarify a problematic

area of law.There is also

the argument that the creation of a separate crime is not always in the best

public interest as opposed to creating a ?different ground of liability? and

the need to consider corporate liability more widely in general.?[20]?Ashworth

argues that focusing too much attention on the punishment for past wrongdoing

is not constructive for society in general as, there is a greater need for

prevention[21].What is evident

is that liability does need to be imposed where there has been some disaster

brought about through blatant failure on the part of a company to ensure the

safety of the public and its employees. The current law as has been

demonstrated is far from clear or uniform in its approach to dealing with the

question of corporate manslaughter. There does however need to be a degree of

caution however that criminal liability is not imposed simply as a result of

extraordinary events or a public desire for vengeance, as the maxim ?hard cases

make bad law? elucidates. BibliographyAshworth, A. 1999. Principles of Criminal Law. 3rd Ed. OUPClarkson, CMV. 1998. Corporate Culpability. Journal of Current Legal Issues. London:

Blackstone Press Ltd.Department of Transport (1987), The Merchant Shipping Act 1894, mv Herald of

Free Enterprise, Report of Court No 8074 (Sheen Report). London: HMSO.Reforming the Law on Involuntary Manslaughter: The Governments

Proposals. (2000). The Home Office. London: HMSO.Smith and Hogan. 1999. Criminal Law. 9th

Ed. London. Butterworths.Smith and Hogan. 1999. Criminal Law, Cases

and Materials. 7th Ed.

London. Butterworths. The Law Commission No 237. 1996. Legislating the Criminal Code, Involuntary

Manslaughter. London. HMSO. [1] Reforming the Law on

Involuntary Manslaughter: The Governments Proposals. (2000). The Home

Office. London: HMSO. [2] Smith and Hogan (1999, p. 282) [3] R v P&O European Ferries (Dover) Ltd. [1990] 93 Cr App Rep 72,

Central Criminal Court [4] Legislating the Criminal

Code: Involuntary Manslaughter Report No. 237 (1996) [5] [1995] 3 All ER 918 [6] ibid.(Lord Hoffman at p.

507) [7] See above. [8] Department of Transport (1987), The

Merchant Shipping Act 1894, mv Herald of Free Enterprise, Report of Court

No 8074 (Sheen Report). London: HMSO. [9] Ibid. [10] R v P&O European Ferries

(Dover) Ltd [1990] 93 Cr App Rep 72, Central Criminal Court [11] R v HM Coroner for East Kent,

ex parte Spooner [1989] 88 Cr App R 10, p.6 [12] AG?s Ref. (No. 2of? 1999) [2000] All ER (D) 178 [13] R v Great Western Trains Co

(GWT) [1999] Unreported, Smith &Morgan (1999), p.282 [14] R v Adomako [1994] 3 All

ER 79 [15] Bingham LJ, R v HM Coroner

for East Kent, ex parte Spooner [1989] 88 Cr App R 10, p. 16 [16] Rose LJ, AG?s Ref. (No.

2of? 1999) [2000] All ER (D) 178 [17] Reforming the Law on

Involuntary Manslaughter: The Governments Proposals. (2000). The Home

Office. London: HMSO. [18] Legislating the Criminal

Code: Involuntary Manslaughter Report No. 237 (1996), c. 4 (1) [19] Smith & Hogan (1999), p.283. [20] Ashworth, A. 1999. Principles

of Criminal Law. 3rd Ed. OUP. p. 123. [21] Ibid. p. 123-4