When Business Kills

Sarah Field, Lucy Jones

• Publisher: Business Expert Press
• Year: 2017
• ISBN:
  9781631579653
• Topic: Business
• Subtopic: Diritto societario
• Index: Business

This book aims to explain in clear, accessible language, the approach taken by government to corporate offending resulting in a fatality in both the United Kingdom and the United States. The key provisions of the statutory offense of corporate manslaughter, introduced into the United King­dom in 2008, are examined, and set in context through a consideration of their relationship with prosecution for fatalities at work via the Health and Safety at Work etc Act 1974. Further contextualization is made through comparison with the current position in the United States, highlighting both similarities and differences in approach to occupational fatalities. The range of potential penalties is discussed with particular focus on the sentencing guidelines that apply after February 2016. Concluded corporate homicide cases are reviewed in order to assess the current regime in terms of financial penalties and to shine light on the evolving approach of the prosecuting authorities and the courts to these offenses.

CHAPTER 1

The Common Law Framework

Prior to the enactment of the Corporate Manslaughter and Corporate Homicide Act (CMCHA) 2007,¹ the offense of corporate manslaughter in the United Kingdom relied upon the common law. The common law background is important because it highlights how corporate criminal liability has been plagued by the issue of how a corporation becomes criminally liable, and also because the existing common law offense of gross negligence manslaughter continues to apply to individuals, even after the enactment of CMCHA.

In common with the position under U.S. law, criminal liability in the United Kingdom typically requires the establishment of a prohibited act or conduct, together with an accompanying, and concurrent, mental attitude encapsulated in the Latin phrase, actus non facit reum nisi mens sit rea.²

The first requirement is the commission of an act forbidden by law, the actus reus, that leads to – causes – the final consequence. Historically, this has generally referred to the positive commission of an act, and there has traditionally been resistance to the imposition of criminal liability for failure to act. Nonetheless, the criminal law does recognize that this may occur, albeit exceptionally.³ These exceptions have been restricted to cases where a duty has been imposed by statute, or has arisen because of contractual or public duties, or where the accused has inadvertently created a danger which he is then required to take steps to avert, or where the law deems him to owe a duty of care to the victim.

Manslaughter Under the Common Law

Where the prosecution are seeking a conviction for manslaughter, they will first need to prove that the defendant committed the actus reus of that offense, namely the unlawful killing of a human being.

English common law distinguishes two principal forms of involuntary manslaughter: unlawful act (constructive) manslaughter and killing by gross negligence. Criminal liability for the former involves an act which is unlawful in itself resulting in death, while liability for the latter arises where the victim is owed a duty of care by the perpetrator, and while the defendant’s conduct is lawful in itself, it is carried out in such a way that it is regarded as grossly negligent and therefore a crime. The former essentially involves the construction of a greater crime out of a lesser crime where death results from the intentional commission of a criminally unlawful and dangerous act, whereas liability for the latter relies on the defendant owing a duty of care to the victim and the gravity of the breach of that duty. Until 2007, where an individual was killed as a result of corporate negligence, a prosecution would normally be based on the common law offense of gross negligence manslaughter.

In addition to establishing the actus reus, the prosecution must also prove that the defendant committed the actus reus while in a certain state of mind i.e., on proof of fault, traditionally known as mens rea or a “guilty mind.” There are three principal states of mind which separately or together can constitute the necessary mens rea for a criminal offense: intention, recklessness, and negligence. Negligence consists of falling below the standard of the ordinary reasonable person. The test is objective, based on the hypothetical person, and involves the defendant either doing something the reasonable person would not do, or not doing something which the reasonable person would do.

In the case of gross negligence manslaughter, the negligence standard is higher than for other offenses with a negligence requirement: in order for a defendant to incur criminal liability for manslaughter, the culpability element requires the negligence to be gross. In R v. Bateman,⁴ where a doctor’s patient had died during labor, Lord Hewart CJ explained this concept thus:

“[I]n order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving of punishment.”⁵

Imposing liability on an artificial legal construct such as a company has proved difficult. Legal concepts such as actus reus, mens rea, and causation, designed with natural actors in mind, do not easily lend themselves to inanimate entities such as companies.

Vicarious Liability

The courts have attempted to solve these problems by using a number of techniques to circumvent notions of actus reus and mens rea so that they could apply to companies. One of these is the doctrine of vicarious liability (or “respondeat superior”) according to which the mens rea and actus reus of another are assigned to the defendant. Liability of corporations by way of vicarious liability was initially recognized in R v. Great North of England Railway Company⁶ and it is now clear that a corporation may be vicariously liable for the negligent acts and omissions of an employee during the course of his employment.⁷

In the U.S. legal system, corporate culpability based on vicarious liability is well established. This exists where the actions or omissions of a company’s employees have breached a duty incumbent upon the company. In New York Central and Hudson River Railroad Company v. United States,⁸ the court determined that a corporation could be imputed with the knowledge of the act and omissions of its employees and that any criminal culpability for those actions – should they be in violation of law – could also be imputed to the corporation. The court’s reasoning was that if corporations were permitted prosecutorial immunity for their actions, it would undermine the ability of the government to control and correct any abuses.

In the United Kingdom, subsequent to the failed prosecution of P & O Ferries for the capsize of the Herald of Free Enterprise ferry in Zeebrugge harbor (causing the death of 193 passengers and crew) another alternative approach was mooted; namely whether the deeds (or omissions) and states of mind of two or more employees could be added together, “aggregated,” to create vicarious criminal liability in the company which employed them. There is support in the United States for this approach, known as the “collective knowledge” doctrine,⁹ according to which companies are vicariously liable for the behavior of their employees, whatever their status in the organization, and by virtue of which, the conduct and fault elements of the employees can be aggregated so as to render the company liable. In other words in the United States, the conduct of one junior employee can be added to that of another to render a company criminally liable.

Different state jurisdictions diverge in their application of state and federal homicide legislation however. In New Jersey, for example, the courts have determined that a company could be committed of involuntary manslaughter, while in New York in People v. Rochester Railway and Light Co.,¹⁰ it was held that companies cannot be liable for such crimes, on the grounds that manslaughter requires the killing of one human being by another. The Rochester case proved to have a restrictive influence in terms of the approach to corporate criminal liability until the late 1970s when judicial decisions in a number of states (such as California, Indiana, New York, Pennsylvania, and Texas) started to hold that corporations could in fact incur liability for manslaughter.¹¹

In the United Kingdom on the other hand, the courts have ruled that the principle of vicarious liability does not extend to the offense of corporate manslaughter.¹²

The “Identification” or “Directing Mind” Theory

In R v. HM Coroner for East Kent ex p Spooner Bingham LJ affirmed that whilst a company may be vicariously liable for the act of its employees, in order for it to be criminally liable for manslaughter: “It is required that the mens rea and actus reus of manslaughter should be established not against those who acted for or in the name of the company but against those who were to be identified as the embodiment of the company itself.”¹³

In other words, in relation to the offense of involuntary manslaughter, a corporation’s guilt could only be established under the common law if it was possible to link the grossly negligent act of an employee through a chain of command, to the “controlling” or “directing mind.”¹⁴ It was this theory – the “identification” or “directing mind” theory – that formed the basis of the common law offense of corporate manslaughter in the United Kingdom. The doctrine established that while individuals in a corporation could face charges of gross negligence manslaughter (or, indeed, unlawful act manslaughter) a corporation would only incur criminal liability for manslaughter through its controlling officers. Criminal liability would exist solely where a p...

Table of contents

• Cover
• Half Title Page
• Title Page
• Copyright Page
• Contents
• Acknowledgment
• Chapter 1 The Common Law Framework
• Chapter 2 Criminal Legislation
• Chapter 3 Using Health and Safety Legislation for Corporate Killing
• Chapter 4 Penalties
• Bibliography
• Index