Introduction
Corporate manslaughter is an offence under the criminal law of the United Kingdom. Although the law applies to the whole territory of the UK, the terms used in diverse parts of the UK are different, with the south of the UK (England, Wales and Northern Island) using corporate manslaughter while the north i.e. Scotland using the term corporate homicide. The terms were introduced when the UK Parliament passed the Corporate Manslaughter and Corporate Homicide Act (CMCHA) in 2007. The Act created a new statutory offence that removed the identification doctrine and controlling mind as it was in common law. The law put juristic persons in the same position as a natural person capable of conviction of the offence of manslaughter (or homicide in Scotland) on their own. An analysis of the CMCHA reveals that while it has undoubtedly been a success in addressing some of the gaps that had been left by the common law, it also lacks clarity in some instances.
The Common Law Position Prior to the CMCHA
The common law in the UK had always catered for corporates that took actions, which contravened the law and thus causing harm to others . However, the punishment of the corporate body was intractably linked to the culpability of a senior member of the corporate in a doctrine known as the identification doctrine . This called for gross negligence by a person who not only had a direct link to the company but had a considerable influence on the body corporate to be declared culpable for the murder. In the eyes of the law, the person had to have such considerable influence over the affairs of the company that the company could be said to have been thinking and acting through him/her. This third-degree imputation of guilt was not always possible as in the controlling mind, test could fail in cases where the health and safety provisions were often transferred to the junior managers who could not be said to be the controlling minds of the company.
The situation began to change with the Sheen Report on the Herald of Free Enterprise . Without regard to the failure of individual employees to perform their duty, the Sheen Report severely criticized not just the management but also stated that the accident could be attributed to the whole body corporate because from top to bottom the body corporate was sloppy on issues of safety . Of note is that the English and UK law in general had little scope for the use of manslaughter (homicide) in regard to corporates. However, on appeal, the judge confirmed that the company could be charged with corporate manslaughter. Although, in a similar case, it was impossible to prosecute the concerned company, the Great Western Trains, because the prosecution could not sufficiently satisfy the doctrine of identification . Only the train driver and the company itself ended up being prosecuted. In a vicious cycle, the court determined that the driver was not a person at a managerial level (and thus could not be a controlling mind) and the case against the driver was dismissed . The company was also acquitted as there was “no mind” that could have been held to have been “controlling” the corporate.
Place New Order
In addition to the issue of identification, the common law had another limitation when it came to corporate manslaughter: aggregation . This meant that common law did not allow the prosecution to aggregate the failings of several people in the organisation while seeking to prosecute offences, in which corporates were charged with manslaughter such as in the offence of gross negligent manslaughter.
The Great Western Trains case illustrated the impossibility of conviction when the prosecution could not identify a controlling mind . This is what called for the reform of the law so as to make corporates directly responsible for the manslaughter charges. This led to the passage of the Corporate Manslaughter and Corporate Homicide Act, 2007. However, it is important to note that the Act has a non-restrospectivity clause; it only covers events from the date it was to take effect . Any prior events are to be covered by the provisions of the common law as it then was. After the Act had got royal assent in July 2007, it came into force on April 6th, 2008. It is hoped that the Act will help to cure the common law provisions of identification and aggregation.
Main Provisions of the Corporate Manslaughter and Corporate Homicide Act, 2007
The new Act has several main provisions that are meant to cure the ills of the common-law position on corporate manslaughter. Firstly, section1 widens the scope of the previous common law position by stating that an organisation will be guilty of the offence if the organisation or management of its activities leads to the death a person. The death also has to result from gross breach of the duty of care the organisation owed to the person who has died .
Section 2(1) defines the relevant duty of care as encompassing several duties that are drawn from the law of negligence. The first is the duty an organisation owes to its employees or other people providing services to the organisation. In addition, the Act also covers the duty of care owed by occupiers of premises. Thirdly, the Act covers a duty of care owed in relation to the supply of goods and services regardless of whether the supply is for consideration or not, any maintenance or construction done by an organisation and any other activity carried out on a commercial basis and the use and keeping of any plant, machinery or vehicle. Lastly, to cover the duty of care policemen and similar authorities have on others, Section 2(1) (d) and 2(2) cover people in custodial authorities at courts or police stations detained at a removal centre or a short-term holding facility. It also covers a person being transported in a vehicle, being held at premises in regard to prison or immigration escorts arrangements, someone in a secure accommodation, in which he/she has been placed, or a patient who has been detained.
The Act also encompasses some exclusions in certain circumstances in public and government functions, especially regarding public policy (section 3). The reason is that there are other forms of public accountability concerning policy in most of public policy cases. The exemption widens to cover military activities such as peacekeeping that could turn potentially violent, terrorism and violent disorder. Police operations, especially those involving terrorism and violent disorder, also fall under this exception. In the case of the military and the police, any death that occurs during the preparation, hazardous training and support activities for such also fall under this exception (section 4 and 5). These three exemptions are known as comprehensive exemptions. The Act also includes partial exemptions. An organisation will not have committed the offence of corporate manslaughter unless the death has a correlation to the duty of the organisation as an employer or as an occupier of premises. These include emergency responses, care and supervision orders pursuance to the Children’s Act 1989, and an exercise by a probation board. Government prerogative powers also fall under the Act, such as in the case of civil emergency and other functions that by their very nature require statutory or prerogative authority, which are activities of such a nature that a private body cannot perform.
Section 2(6) rules out any common law exceptions that would negate law the duty of care a person owes to another because the two are engaged in the commission of an unlawful act. In addition, according to the same clause, the acquiescence of a risk of harm by an individual shall not excuse an organisation from a duty of care regardless of the common law.
Section 1(6) of the Act further gives the hitherto unprecedented punishment of an unlimited fine. In addition, the Act leaves no scope for an individual to be prosecuted for aiding, abetting, counselling, or procuring the commission of the corporate manslaughter (S.18). This leaves the scope to charge involved individuals with the offence of gross negligence.
Section 1(2) gives the bodies, to which the law may apply. They are stated as corporations, any department or any other body listed in Schedule 1 of the Act. In addition, police forces are also included as are partnerships, trade unions, and employers unions that have employees. Of note is that government departments were excluded from prosecution in common law from such an offence as they had immunity. However, such bodies can now be prosecuted under Section 11(1). Crown incorporated bodies such as the Postal Services Commission are not spared either. Other bodies such as local authorities are also included in the groups that can be charged with the offence. In the case of corporations, they need not be incorporated in the UK. As long as they have operations in the UK, they are capable of being indicted. Further, if an organisation has subcontracted a certain work, the subcontractor can be held liable if it owes a duty of care to the deceased. The law also applies to charities and other voluntary organisations if they are incorporated. If a charity operates in any other form, such as a partnership with employees, then it will also be liable.
Has the Act Addressed the Weaknesses of the Common Law?
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The common law had several deficiencies in regard to the accountability of organisations concerning deaths caused by their actions . The Act has effectively sealed most of the loopholes, through which organisations would escape culpability. In the first case, the Act has eradicated the controlling mind provision and thus the doctrine of identification. Therefore, the corporation can be indicted and convicted of the offence without the need for a person in authority to control the events that lead to the death. The responsible people can be separately charged under provisions of gross negligence . Secondly, the provision for the unlimited fine that the judge could impose in the case of a conviction also ensured that the organisations take the law seriously . This is especially so after the Princess Sporting Club in 2013 was fined ?35,000 including all the money on its account, plus a further ?100,000 in costs after the Club pleaded guilty to corporate manslaughter regarding a girl who was run over by a boat during a birthday party.
In addition, the Act has also included government departments and similar organisations in the realm of corporate manslaughter. Under the common law, it was entirely impossible to prosecute such organisation as most of the government departments and Crown bodies had immunity from such prosecution.
Actus Reas, Mens Rea and Causation under the CMCHA 2007
Actus reas refers to the guilty act in criminal law i.e. the act or omission, without which there would be no offence. In CMCHA, the actus rea is an action performed through the senior management of an organisation that leads to the death. In addition, the act has to have been a gross breach of the relevant duty of care that the organisation owes to the deceased. This is dealt with in Section 1 of the Act. In this case, the mens rea has two aspects: firstly, an action that leads to the death, and secondly, an omission of the requisite duty of care. Means rea refers to the mental element, which when combined with the actus reas, leads to the criminal act. In this case, the mental element is recklessness of the management or its negligence concerning the situations, which lead to the death in question.
In the Act, it is clear from Section1 (a) that the prosecution must prove that failure of the management was the cause of the death. This raises the question if corporate mismanagement needs to be the immediate cause of the death. One question whether in the case where corporate mismanagement is not immediate arises if the courts will find the organisation culpable. In this case, the direction of a particular case will be informed by the courts interpretation. However, when one takes into consideration law of causation where it is apparent that the independent acts of an adult can lead to the break of the chain of causation, one sees particular lacunae. In this case, the law is very expansive to the point of being ineffective. This is even more apparent when one considers that the law conflicts itself in concerning causation when one looks at Section 18, which precludes finding an individual an accessory to the offence. Examined critically, one has to question if it is possible to argue that the management is not an accessory to the offence if their actions form a substantial element of the offence as pronounced in Section 1(3).
Jurisdictional Reach of the CMCHA and How It May Affect Its Working
Section 28 of the CMCHA gives guidelines on its jurisdiction. Section 28 (1) states that the Act shall apply in all of the UK i.e. England, Wales, Scotland and Northern Ireland. However, Section 28(2) implies that amendments made by the CMCHA on existing legislation in particular part(s) of the UK will only have a reach in those particular part(s). This will have the effect of having an inuniform application of the law across the UK, which would affect its efficacy.
Secondly, in Scotland, the jury can return three verdicts in the case of criminal law: guilty, not guilty, and not proven. In two later cases, acquittal follows. However, with the publicity that follows an organisation in court for such a case, the return of a not proven verdict can have a huge effect on the organisation due to a large amount of negative publicity generated.
Along with that, the Act is tasked to deal only with the organisations to the exclusion of the persons in control of the organisations. This has the effect of cutting of the body corporate from the person culpable for the criminal acts. It is not impossible for an organisation to do a criminal act without the hand of an individual. This means that the actions or omissions of senior management will lead to criminal culpability for the whole organisation. In organisations such as companies where the management is usually not the shareholders, the shareholders will suffer from what are clearly the mistakes of another person raising the question if the Act is punishing the right person.
In addition, the Act also includes other bodies that are not profit oriented in its jurisdiction. These include bodies that provide public services such as the police force and hospitals. While there is no doubt that these organisations also owe a duty of care to the concerned people, there are question marks about where punishing these bodies is not counter-productive, especially when one looks at the unlimited fine clause. It is clear that this may have an adverse effect on public service and public taxes since it is taxation that supports these bodies ultimately.
Mode of Trail and Penalties Available
The offence can only be tried on an indictment after a preliminary trial to determine if there is probable cause. In Scotland, the offence of corporate homicide can only be indicted at the High Court of the Justifier (Section 1 (7)).
The severest penalty that the Act has proposed is an unlimited fine. In addition, the court can also make a remedial order. If the organisation fails to comply with the remedial order, it is committing an offence and is liable to an unlimited fine on conviction.
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Furthermore, the unique penalty requiring the organisation to publicize the details of the conviction including the particulars of the offence, the fine the court has imposed and terms of any remedial order are also available to the court. Additionally, if an organisation fails to comply with a publicity order, it is exposing itself committing an offence and exposing itself to an unlimited fine.
The Sentencing Guidelines Council published guidelines for sentencing on conviction on the offence of corporate manslaughter . According to the Guidelines, the appropriate fine will seldom be less than ?500,000 and may be more. At the same time, the Guidelines state that the court should take into account the impact the corporate manslaughter had on the innocent victims and not on shareholders and directors . In relation to organisations that provide public service, the Guidelines state that court should look at the effect the punishment will have on their ability to provide public services . However, in regard to the standard of behaviour, both the public bodies and commercial companies are equal.
Conclusion
CMCHA has plugged some of the common law lacunae that existed in terms of corporate manslaughter in the UK. For instance, it has done way with the doctrine of controlling hand. This has paved the way to hold corporates responsible for the death that results from a managerial failure and the gross breach of the duty of care. In addition, the provision of the unlimited fine clause has meant organisations are more careful concerning these whom they owe a duty of care to. However, the Act has also raised several concerns concerning its application. For instance, the inclusion of public bodies that give essential services in the Act, with the result and penalties has raised questions about the impact the Act could have on public service.