"Making corporations liable for criminal offences involves greater difficulty attached to it than would first appear to be the case" discuss with reference to corporate criminal liability generally but also with reference to the particular offence of manslaughter. Discuss any proposals for reforms of this area of the law.
"Making corporations liable for criminal offences involves greater difficulty attached to it than would first appear to be the case" discuss with reference to corporate criminal liability generally but also with reference to the particular offence of manslaughter. Discuss any proposals for reforms of this area of the law.
"Making corporations liable for criminal offences involves greater difficulty attached to it than would first appear to be the case" discuss with reference to corporate criminal liability generally but also with reference to the particular offence of manslaughter. Discuss any proposals for reforms of this area of the law.
Making corporations liable for criminal offences involves greater
difficulty attached to it than would first appear to be the case.
Discuss with reference to corporate criminal liability generally but also with reference to the particular offence of manslaughter and any proposals for reforms of this area of the law. _______________________________________________________________________ It is widely believed that the existence of corporations can either enhance the employment opportunities living standards and !uality of life of people or undermine them. It has been contemplated and debated in recent times that changing industrial activities evidences the necessity of regulation. "hese profit minded entities have caused significant public harm and deaths but have always been pardoned by the courts and the government. #ence these corporations continue to carry on their business with little interference from the law. "his document will discuss some of the problems underlying the $% approach towards corporate criminal liability. &urthermore it will analyse the law governing corporate manslaughter and highlight some of the difficulties encountered in attributing liability to corporations for criminal conduct. ' company should be criminally liable when it has organised its business in such a way that persons and property are exposed to unreasonable and unnecessary dangers. #owever this has not been the case in the $% due to the stringent approach of the (udges. "hey have been very cautious in developing the common law relating to corporate manslaughter and have left the matter for the legislatures to look after. "he document will look at the general perception of the existing law and recommend changes to the current structure. It is time to recognise that criminal law is needed in order to deter corporate deviance that can lead to significant public harm and deaths. )
"he view held by most academics as supported by research public in!uiries law suits and media attention on deviance and law breaking by corporation indicates that companies often deliberately and sometimes repeatedly break the law. "o achieve their targeted profits often corporations fail to manage the risk and engage in activities that causes immense harm both financially and in terms of loss of life and limb. *If caught the likelihood of a prosecution is remote the prospects for a conviction if there is a prosecution are not promising and the sanctions following the infre!uent conviction can be derisory.+ , It is widely believed that most governments have been less than fully committed in combating corporate wrongdoing. -romoting corporations is one of the areas that every government attends to and to penalise them for their wrongdoing could affect their liaison and economic growth. &urthermore until the recent past the general public also had little interest in this area. .orporations were widely perceived as a benefit for the community and their actions were largely ignored and disregarded even when it caused loss to the general public. /verlooking corporate crime until recently has demonstrated the need for urgent reform as 1 Gobert, J., Corporate Killing at Home and Abroad Reflections on the Government Proposals, .!.R., "#$$#%, 11& Jan, at pg &$. # 'ee generall( Gobert, J ) P*nch, +,. Rethin,ing Corporate Crime, "#$$-%, .*tter/orths0 e1is 2e1is, ondon. the world has realised that the effects of corporate crimes are more harmful more costly more extensive and more debilitating than those which follow from street crimes which has been the main focus to curb by many governments till today. 0
It is contemplated that the real difficulty in attributing criminal liability is caused by the fact that we are too wedded to the traditional notions of criminal law when we are trying to impose criminal liability on companies. Instead we should look at the company for what it is an abstraction and examine ways in which it might be possible to hold corporations accountable for crimes which have arisen. ' company as a legal abstraction is reliant on its agent and employees to perform the actions that a natural person would perform. 's such a company might be vicariously liable for the torts that its agent commit through the operation of ordinary tort law. In general it is relatively straight forward to determine when a company will be liable for the tort of its agent. If one can determine that the agent had authority to commit a particular act and furthermore that the tort was committed in the course of the company+s business then the company will be liable. 1 #owever the controversial issue is that of a company+s liability for crimes. Most offences have two elements2 the actus reus and mens rea. "he company as a legal abstraction cannot commit either of these itself. /nce again its agent must commit the act and have the mental element re!uired to satisfy liability. 's we shall see this has caused great difficulty for the law and has rendered it extremely difficult to achieve a successful prosecution for many crimes particularly where the acts or omissions of a company have killed someone. 3 's a general principle a company should bear responsibility for outcomes that follow from the way that it conducts its business operation. 4hen those outcomes are criminal then the company should be criminally liable. It has been simple to attribute criminal liability to the company where a statutory offence gives rise to vicarious liability on the part of a company for the acts of its employees. 5 6uch liability may arise even where the employee in the course of its employment acts contrary to the instructions or company policy. 7 "he other method of attributing criminal liability is by the identification doctrine. "his doctrine as we will see has caused a lot of problems and the underlying idea behind the concept has been severely criticised. $ntil recently it was not clear whether a company could be charged for any offence which re!uires proof of mens rea. 8 "he traditional approach drew a distinction between the hands and mind of the company. It was contemplated in 9ennards .arrying .o 9td : that a company cannot be guilty of any crime which re!uires a significant mental element unless - 'ee generall( Gobert, J ) P*nch, +,. Rethin,ing Corporate Crime, "#$$-%, .*tter/orths0 e1is 2e1is, ondon. 3 As per .*tler0 'loss .J in 4rotman v 2orth 5or,shire Co*nt( Co*ncil, "166&% 78CA Civ 1#$& at para 19. : 'ee generall( R v P ) ; <erries "=over% td. "1661% 6# Cr. App. R. ># 9 Hannigan, .., Compan( a/, "#$$-%, e1is 2e1is0 .*tter/orths, ondon, at pg 61. > Re '*ppl( of Read( +i1ed Concrete "2o #%, =irector General of <air 4rading v Pioneer Concrete "?K% td, "166:% 1 .CC 91-, H. & As per Channell, J, in Pear,s, G*nston and 4ee td v 8ard "16$#% # K. 1 at pg 11. 6 ennards Carr(ing Co td v Asiatic Petrole*m Co td. "161:% AC >$:. the directors technically the mind of the company are aware and sanction the commission of the crime. 4ith the passage of time and changing industrial activities now involving greater risk for the employees and the general public it was thought necessary to strictly abide by safety standards and any offence committed with a criminal state of mind by an employee should be attributed to the company *where the circumstances are such that the knowledge and intention of the employee must be attributed to the body corporate+. ); D/- v %ent < 6ussex .ontractors 9td is one of the earlier cases where the possibility of using the identification doctrine against a corporate was approved in cases involving the mental state of mind. "he doctrine was further propounded in the leading case of "esco 6upermarkets 9td. )) It was made clear in this case that a corporate could only be found guilty of the crime through the identification doctrine and the directing mind and will does not encompass (unior management. *"he reasoning rests on a crude distinction between persons who can be described as the brains of a company and workers who are said to be its hands+. ), It is a !uestion of law once the facts have been ascertained whether or not the wrongdoer is to be regarded as the company or merely as an employee or agent. 'ccording to 9ord =eid *these persons are not the alter ego of the company but rather for all intents and purposes are the company+. )0 4hether the identification doctrine has been able to achieve its aim of rightly punishing the offender or not is an issue that merits brief discussion here. *' two step analysis first identifies the perpetrator and then envisages if that person has sufficient standing as to be identified with the company+. )1 4ho these persons are is a matter of (udicial resolution. "his approach of *identifying the mind+ has proven highly elusive for it is apparent that mistakes are not always forthcoming from the few people categorised as the mind of the company. /nly if they falter the company would arguably be convicted. &aults made by people lower down the order may regrettably cause loss of hundreds of lives but still will not be enough for a successful prosecution. Identifying the offender as the mind of the company has been a problematic issue. "he problem with the identification doctrine is that it becomes most unlikely that companies will be held liable for crimes that they commit. It fails to capture the complexity of the modern company. "he responsibility for any given facet of a company+s operation is normally distributed among different managements within the company. "he conse!uence is that the company will be able to escape criminal liability for most act of its employee because the current approach of identifying the offender has restricted the ability of the law to punish the offender as they ought to be. *.orporate accountability for death is hampered by the tiers of company structure and the doctrine of identification+. )3 Identification doctrine prima facie is practical 1$ As per +acnaghten, J in =irector of P*blic Prosec*tion v Kent ) '*sse1 Contractors td "1633% K. 139 at pg 1:9. 11 4esco '*permar,ets td v 2attrass "16>#% AC 1:-. 1# Gobert, J ) +*gnai, 7., @Coping /ith Corporate Criminalit(0 'ome lessons from Atal(B, "#$$#%, Criminal a/ Revie/ at pg 916. 1- As per ord Reid in 4esco '*permar,ets td v 2attrass "16>#% AC 1:- at pg 1>1. 13 Gobert, J. @Corporate Criminalit(C <o*r models of <a*ltB, "1663%, 13 egal 't*dies, at pg -6:. 1: Pinto, A ) 7vans, +., Corporate Criminal iabilit(, "#$$-%, '/eet ) +a1/ell0 ondon, at pg ##1. when the crime is committed by a small firm in the course of its business. )5
'nother practical difficulty in holding corporations criminally responsible exists in the health and safety area. -arliament has filled the gaps in this area with regulatory offences which have not proved particularly effective in curbing corporate wrongdoing. "he #ealth and 6afety >xecutives )7 are responsible for the enforcement of these laws and are under a statutory duty to investigate any work related death. #owever these officers have no legal authority to bring a prosecution against the corporation for the offence of manslaughter. "hey are re!uired to investigate the cause of the accident and then pass on the information to the police. )8 */ften under funded and inade!uately staffed these officers have been reduced to a compliance strategy+. ): 'ttempts are made at first instance to negotiate a settlement with the offending company and past offences are overlooked in exchange for a promise not to commit future ones. >ventually punishment corporations battered with have been fines for the victims. In the case of large corporations even relatively large fines are fairly insignificant. It is logical to assume that victims are not always content with monetary compensation and *may feel deprived of the cathartic vindication which is provided by a criminal conviction+. ,; #ence regulatory offences seem inade!uate to deal with serious corporate wrongdoing *for they are neither sufficiently stringent to deter nor sufficiently onerous in their sanction to punish+. ,) "he traditional doctrine of Identification and reluctance of the -arliament and its officers to bring charges against a corporation for death or serious in(ury has rendered it difficult to bring a successful prosecution against the corporate. Despite the harm the in(uries and the loss of life over the years and despite evidence of arguably gross negligence on the part of the defendant companies obtaining a criminal conviction has proved highly elusive. ' true criminal alternative is needed to punish these entities for *industrial accidents+ that causes significant public harm and deaths. "he document will now look at the offence of corporate manslaughter and address some of the issues underlying the common law offence. -ressure for reform has been mounting by an increase in awareness and responsiveness of the number of people killed or in(ured every year in the workplace where blame could rightfully be attributed to the company involved. ,,
Corporate manslaughter "here has been an increase in outcry for reform of the law relating to corporate manslaughter. *"he issue is catapulted on to the political and 19 R v Kite "1669% # Cr. App R, #6:. 1> Hereafter referred as @H'7B 1& Pinto, A ) 7vans, +., Corporate Criminal iabilit(, "#$$-%, '/eet ) +a1/ell0 ondon, at pg #1& 16 Gobert, J. @Corporate Criminalit(C <o*r models of <a*ltB, "1663%, 13 egal 't*dies, at pg -6-. #$ Abid at pg -63. #1 Abid. ## Health and 'afet( 71ec*tive 'tatistics "///.hse.gov.?,Dstatistics%. academic agenda by a series of much2publicised transportation and other ?disasters? most of which were followed by public in!uiries blaming the companies operating the various activities+. ,0 "he topic has attracted significant attention in the $% in recent years. It has been reported that since ):5: there have been )8)3) persons killed at work without a single conviction of a company for an offence of homicide. ,1 "he difficulty in holding a company criminally accountable for the harm caused continues to vex the >nglish (udiciary. ,3 Despite numerous attempts to curb corporate wrongdoing by applying conventional criminal law to companies not a single existing corporate has been prosecuted. @udicial ob(ections have been procedural historical and pragmatic. ,5 "heir stringent approach with regards to corporate crime have come under intense criticism and rightly so. 9egislative and (udicial changes have been desired expected and discussed by the government media and in particular by the victims of corporate wrongdoing. It is important to look at a few important cases that have aroused interest and highlighted the need for change as these exposed the fragilities in the common law. "he issue was raised in the modern context initially by the decision in = v - < / &erries 9td. ,7 "he capsiAe of the ferry causing considerable loss of lives and the failure to obtain a conviction in the subse!uent prosecution was the initial prompt to much of the interest in this topic. @udges adhered to the traditional approach of identification and affirmed that a corporate would only be guilty of manslaughter if it could be shown that the actions in !uestion were from one of the minds of the company. .onversely the prosecution in this case attempted to argue that defendants could be guilty if the acts and mental states of more than one individual within the company were aggregated in order to establish the re!uired degree of recklessness on the companyBs part. ,8 "his approach known as the *aggregate model+ was re(ected by the courts in this case and the subse!uent prosecutions. "his approach attempts to allow the acts omissions and mental states of different people in the company to be added up in order to satisfy the elements of a crime. ,: *"his allocation of responsibility is appropriate for the negligent acts of the individuals concerned might not when looked at in isolation reach the level of gross negligence re!uired for individual criminal liability. #owever when these individual acts of negligence are added together they may lead a fact2finder to discern a pattern of recklessness or gross negligence on the part of the company+. 0; It would have been possible to convict the defendant in - < / &erries had the courts aggregated the acts and omissions of the different people responsible for the catastrophe. Cut the courts thought otherwise and dismissed the aggregation approach as a possible route to corporate manslaughter. It was contended that the defendants should not be #- Clar,son, C.+.E, @Corporate +ansla*ghterC 5et more Government ProposalsB, Crim. .R. "#$$:%, 'ep, at pg 9>>. #3 'lapper,. @Corporate +ansla*ghterC An 71amination of the determinants of Prosec*torial Polic(B, "166-% 'ocial and egal 't*dies, pg 3#-0 #:. #: Gobert, J. @Corporate Criminalit(C <o*r models of <a*ltB, "1663%, 13 egal 't*dies, at pg -6-. #9 Pinto, A ) 7vans, +., Corporate Criminal iabilit(, "#$$-%, '/eet ) +a1/ell0 ondon, at pg #1>. #> R v P ) ; <erries "=over% td. "1661% 6# Cr. App. R. ># #& Gobert, J. @Corporate Criminalit(C <o*r models of <a*ltB, "1663%, 13 egal 't*dies, at pg -6: #6 Abid, at pg 3$3. -$ Gobert, J., Corporate Killing at Home and Abroad Reflections on the Government Proposals, .!.R., "#$$#%, 11& Jan, at pg >6. convicted on the basis of another person+s act or omission when the corporate has taken all viable measures to prevent such accidents. 0) *'ggregation was thus an attempt to capture more accurately the nature of corporate fault. #owever the concept did not appeal to the courts and corporate liability based on aggregated fault died stillborn+. 0, "he 9aw .ommission were soon after referred to examine the law on corporate manslaughter. "he .ommission recommended legislation in order to clarify and indeed extend the law by proposing a separate offence of corporate killing. "heir report proposed to confer corporate liability for death based on management failure without invoking the agoniAing identification doctrine. 00 It sought to overcome the problem created by identification doctrine by proposing that *a company should be guilty of corporate killing when its conduct fell far below what could reasonably have been expected of it in the circumstances and was one of the causes of the death+. 01 "he proposals were not attended to and subse!uent cases and ac!uittals of the corporations saw the (udicial approach being criticised at an elevated level. .ompanies were being branded as mass murderers in the eyes of the public still not much was done by the government to embrace the victims and punish these profit minded corporations. ' unified voice of the public was heard again after a series of rail crashes in the mid nineties such as the 6outhall rail crash 03 which involved substantial loss of life. *"he prosecution argued that if it could show gross negligence on the part of the company it should not have to prove that any senior official in the company was guilty of manslaughter as re!uired by the identification doctrine+. 05 #owever this view did not stir the (udges who have been very cautious up till now when attributing liability to the company for their crimes. "he prosecution failed again because of an inability to identify negligence by any individual at the level of the directing mind and will of the company. 6adly Dreat 4estern =ail .ompany was ac!uitted and only had to pay a fine. It was thought necessary after the ac!uittal of the Dreat 4estern =ail from charges of manslaughter to re examine the law on corporate manslaughter closely and redress the difficulties in holding corporations due to the identification doctrine criminally responsible. Dobert identified four possible models of fault which might be used to simplify the criminal liability of companies. 07 It will be useful here to briefly discuss the models here in order to determine whether these methods can offer a more satisfactory approach to the -1 As per .ingham, J in R v P ) ; <erries "=over% td. "1661% 6# Cr. App. R. ># -# Gobert, J., Corporate Killing at Home and Abroad Reflections on the Government Proposals, .!.R., "#$$#%, 11& Jan, at pg >6. -- 8ells, C., Corporations and Criminal Responsibilit(, # nd edition, "#$$1%, ;1ford ?niversit( Press, at pg 1#- -3 ?K a/ Commission Paper #->, "1669%, @egislating the Criminal CodeC Anvol*ntar( +ansla*ghterB at para &.-: -: A0GBs Reference "2o # of 1666%, "#$$$% - All 7R 1&#. -9 Gobert, J ) +*gnai, 7., @Coping /ith Corporate Criminalit(0 'ome lessons from Atal(B, "#$$#%, Criminal a/ Revie/ at pg 9##. -> 'ee generall( Gobert, J. @Corporate Criminalit(C <o*r models of <a*ltB, "1663%, 13 egal 't*dies, pg -6-0 31$. attribution of criminal liability to companies or should we (ust stay as we are. "he first model attempts to impose vicarious liability on the company for the crimes of its employees and agents. "his is the prevalent approach in the $nited 6tates where employers are potentially liable for most crimes which occur within the course of their business operation. 08 #owever the (udges in the $% have gone in the opposite direction and have in general adhered to the view that an employer is not criminally liable for the acts of an employee. 0: Eicarious liability has only been imposed where in the courts opinion it was intended by the -arliament mainly in the health and safety areas in the form of regulatory offences. 1; "his proposition of vicarious liability was re(ected by the 9aw .ommission because *it could penalise a corporation even when it had positively discouraged the offending activity or was unaware of it+. 1) It is arguably unfair to punish a company for a crime committed by one its employees when far more of its employees have striven conscientiously to prevent the crime. &urthermore the difficulty of identifying an individual employee is not addressed by imposing vicarious liability and it serves only to satisfy the actus reus element of criminal liability. "his in effect has restricted the scope of vicarious liability to offences where liability is strict or where an employee is performing a statutory duty on behalf of its employer. 1, "he purpose of vicarious liability can be defeated if the employer is able to show that he acted with due diligence and had taken all reasonable steps to prevent the harm from occurring. "he second doctrine proposed is the identification model. "he problem attached to this doctrine has already been touched in this document. "he third model is known as the aggregate model which has also been discussed above. "he .ommission re(ected this method because it did not obviate the need to identify an individual at fault and presents the same hurdle as the current law. 10 9astly the concept of *corporate fault+ imposes a legal duty to prevent the occurrence of an offence. It covers issues such as corporate governance and expects corporations *to collect information regarding potential dangers possessed by its employees collate the data and implement policies which will prevent foreseeable risks from occurring. If the company is derelict in this duty and a crime has resulted it must bear the responsibility+. 11 9iability through corporate fault appears to understand the underlying concern of putting ade!uate mechanisms in place in order to avoid an accident. Fo proof of individual liability is needed and it signifies the importance attached to safety standards in this era. -& Abid at pg -6:. -6 Abid at pg -69 3$ +o*sell .ros v ondon and 2orth/estern R( "161>% # K. &-9. 31 ?K a/ Commission Paper #->, "1669%, @egislating the Criminal CodeC Anvol*ntar( +ansla*ghterB at para >.#&. 3# Gobert, J. @Corporate Criminalit(C <o*r models of <a*ltB, "1663%, 13 egal 't*dies , at pg -66. 3- ?K a/ Commission Paper #->, "1669%, @egislating the Criminal CodeC Anvol*ntar( +ansla*ghterB at para >.#&. 33 Gobert, J. @Corporate Criminalit(C <o*r models of <a*ltB, "1663%, 13 egal 't*dies , at pg 3$6. Fotwithstanding the increased public concern with corporate safety standard the .ourt of 'ppeal in '2D+s =eference GFo , of ):::H 13 confirmed that liability for manslaughter could only be imposed on a company under the principle of identification. 15 "he response of the court in adhering to the identification doctrine was in order *to avoid the in(ustice of imputing to the blameless company every act and state of mind of individual employees+. 17 "he political media and public criticism against corporate bodies seen to be putting profits ahead of safety *spurred the government to bring forward a consultation paper that resurrected the 9aw .ommissionBs proposal for an offence of corporate killing+. 18 &ollowing the recommendations made by the 9aw .ommission earlier the government proposed to accept the new offence of corporate killing. 1: &urthermore in endorsing the proposals the government expressed its intention to extend the application of the new offence beyond incorporated bodies to cover undertakings that is *any trade or business or other activity providing employment+. 3; 's suggested the corporate would be guilty of killing if *a management failure by the corporation was the cause or one of the causes of a personBs death and that failure constituted conduct falling far below what could reasonably be expected of the corporation in the circumstances+. 3)
"he governmentBs proposal for a crime of corporate killing constitutes an important advancement in this area and marks a dramatic break from conventional >nglish thinking on corporate crime but as we will see it is still deficient in many respects and academics have expressed their scepticism regarding the effectiveness of the proposal. Management failure is as discussed above falling far below the expected standards in the circumstances. It is not every management failure that results in death that will render a company liable for corporate killing. "he problem lies in ascertaining whether the conduct in !uestion is acceptable or not. /ne possible approach suggested by the 9aw .ommission was that similar trade and industry practises must be taken into consideration while reviewing the reasonableness of the conduct in !uestion. 3, "he issue of classifying the *reasonable standard+ can often cause complications as one cannot define accurately the standard giving rise to culpability. "he standards may be set by political and economic consideration or may be is already set at too low a level. 30 "hese difficulties were illustrated by the - < / &erries case *where it emerged that - < /Bs &erries were not alone in making cross2.hannel sailings with open bow doors. /ther companies had done the same albeit 3: "#$$$% - All 7R 1&#. 39 'imister, A.P., ) '*llivan, G.R., Criminal a/0 4heor( ) =octrine, "#$$-%, # nd edition, Hart P*blishing0 ;1ford, at pg #::. 3> 8ells, C., Corporations and Criminal responsibilit(, # nd edition, ;1ford ?niversit( Press, "#$$1%, at pg 11- 3& Gobert, J ) P*nch, +,. Rethin,ing Corporate Crime, "#$$-%, .*tter/orths0 e1is 2e1is, ondon, at pg 1$3. 36 ?K Home ;ffice, @Reforming the a/ of Anvol*tar( +ansla*ghterC 4he Government ProposalsB "#$$$%. :$ Abid, para -.#.#, at pg 1:. :1 ?K a/ Commission Paper #->, "1669%, @egislating the Criminal CodeC Anvol*ntar( +ansla*ghterB at para &.-: :# ?K a/ Commission Paper #->, "1669%, @egislating the Criminal CodeC Anvol*ntar( +ansla*ghterB at para &.>. :- Griffin, '. Compan( a/, 3 th edition, "#$$9%, Pearson ongman0 ondon, at pg 1$9. with less disastrous results. >xecutives of these other companies testified that the risks of capsiAe were not obvious to them. It was this testimony in part that convinced the court to dismiss the manslaughter charges against - < / &erries+. 31 It is hard to imagine how recognition of the ignorance of shipping executives could be allowed to set the standard of what was to be reasonably expected of a ferry operator under the circumstances. 'lthough these transport corporations claim to uphold safety of their passengers as the top most priority such ignorance has prompted concern among the masses. >xcusing the corporate for ignorance may encourage other corporations also may be in different industry to set a very low standard and express similar ignorance if an accident happens. 6uch excuses are not expected to provide any consolation for the victims and will only aggravate the current situation. =ather than investigating from the executives of the same industry the right approach would be to in!uest whether the public were denied a better standard in the circumstances. It is submitted that the expectations of those in the industry should be of evidentiary relevance in answering the !uestion of accepted standards but they should not be determinative. 33 Fo clear line can be drawn to ascertain what the public has the right reasonably to expect of a company in a particular industry. In =. v. 'domako 35 the difficulties of formulating a precise standard were discussed and it was decided that the matter should be left to be determined by the (ury by applying their personal knowledge and experience. "he issue was whether an anaesthetistBs negligence was so gross as to render him liable for gross negligence manslaughter when his patient died. It seems an easy task for a layman to determine whether a doctor failed to show the standard of care and skill expected of him while performing the surgery. It is widely believed that where issues don+t raise any serious complications or !uestions of technical knowledge the (urors by virtue of their collective experience are normally able to discern what would have been a reasonable course of action for the defendant to have followed in the circumstances. 37 #owever to uphold such (ury standards for the crime of corporate killing sounds inappropriate. >ven though (ury is made up of a lot minds and carry a lot of experience it is not thought wise to leave them with determining such complex matters. "he problem lies with the complications and technicalities involved in determining reasonable standards given a particular industry. =arely will (urors be able to draw on their personal experiences to determine what a reasonable company would have done under the circumstances. 38 "hey can fall for both sides and hence should not be invited to draw upon their personal experiences and partial knowledge to try corporate killing. :3 Gobert, J., Corporate Killing at Home and Abroad Reflections on the Government Proposals, .!.R., "#$$#%, 11& Jan, at pg � -. :: Abid at pg &-. :9 "166:% A.C. 1>1. :> Gobert, J., Corporate Killing at Home and Abroad Reflections on the Government Proposals, .!.R., "#$$#%, 11& Jan, at pg &3. :& Gobert, J., Corporate Killing at Home and Abroad Reflections on the Government Proposals, .!.R., "#$$#%, 11& Jan, at pg &3. It is apparent that the proposed Cill carries with it new problems and is not free from encumbrances. "he specific test of liability fails both to provide fair notice to companies of what specifically is expected of them or guidance to the (ury or fact finder as to when a conviction is warranted. Cesides these failings the governmentBs proposal is limited in its scope also. It applies only to homicides and not to any work related in(uries. It is contemplated that serious workplace in(uries are far more common than workplace deaths and offences involving loss of property may perhaps be more common still. 3: It is unclear whether the proposed Cill would be effective if it is enacted since many academics and scholars have already expressed their doubts in its entirety to hold corporations criminally responsible. Despite considerable lapse of time and numerous public responses the government has failed to enact the new legislation on corporate killing. 6ince proposing the new offence there has been very little in the way of progress. It is painstaking to see the road to reform being sabotaged by the political clout of big business. 's a result all we can do is speculate for now. It is important to contrast the approach in $% with some other (urisdictions in order to highlight the limitations currently existing in the law of manslaughter. Ideas adopted in foreign (urisdictions could help broaden and refine the approach of the courts in the $% and bestow them with powers that they ought to have. In Italian law a new statute 5; has broadened the approach relying either on an identification doctrine but an identification doctrine which is willing to look beyond the directors in order to ascribe fault. In addition to this the statute extends to corporate fault by examining whether the company had sufficient policies in place to prevent risks. 5) 'nother potential method for inflicting punishment on firms which transgress the law is to render the directors liable for such transgressions. "his is of course a form of lifting the corporate veil which has very occasionally been used in the $% and other (urisdictions. 6ome $6 states favour the punishment of a particular director or group of directors as does the .hinese legal system with its concept of the legal representative. It would be unusual in the $% for a director to be held responsible for the crimes and misdemeanours of their company. In the $% the law has had considerable problems with this concept preferring to maintain the corporate veil and punish the company through the means of a fine for any transgression of the criminal law. In .hine the law goes further more and there is potential for the legal representative to be prosecuted for the company+s crimes even though the legal representative tends to be very senior member of the company+s management. 5,
:6 +*gnai, 7., @Coping /ith Corporate Criminalit(0 'ome lessons from Atal(B "#$$#% Criminal a/ Revie/, pg 9#- 9$ =G' "egislative =ecree% of J*ne &, #$$1 n.#-1 "=ecreto egislativo F=isciplina della responsbilitG amministrativa delle persone gi*ridiche, delle societG e delle associaHioni anche prive di personalitG gi*ridicaF%. P*blished in GaHHetta ?fficiale n.13$ of J*ne 16, #$$1. 91 Gobert, J., ) +*gnai, 7., @Coping /ith Corporate Criminalit(0 'ome lessons from Atal(B "#$$#% Criminal a/ Revie/, pg 9#:. 9# 'ee generall( .a1ter, C.R ) ;ng, K.4., @A Comparative st*d( of the <*ndamental elements of Chinese and 7nglish Compan( a/B, "166&%, 3&, Anternational and Comparative a/ !*arterl( at 6:0>. Proposals for reform: It must be noted that reliance on the identification doctrine has caused numerous problems and an urgent reform of the law is needed if $% wants to control the activities of the corporations. *"he (ustification for corporate criminal liability rests primarily on pragmatic rather than on moral foundations+. 50 It is proposed that courts should look at organisational fault described above as *corporate fault+ in attributing liability rather than attempting to identify the mind and will of the company or aggregating the cumulative fault of the employees. "he approach is more flexible and is in line with the Italian approach. $nder this approach a company would be guilty of gross negligence if the company fails to prevent its employee from behaving in a negligent or illegal manner. 51 "his would encourage the companies to put in place ade!uate safety measures and formulate stricter company policies. &or the crime under this approach is committed when the corporation fails to prevent a criminal offence. *Drounding corporate criminality in organisational fault will direct a company+s attention to how its business is organised and will promote systems procedures and cultures whose aim is to achieve compliance and safety through the practise of due diligence+. 53 #owever organisational fault should not be considered as the absolute test of culpability because it is designed to supplement the existing theories of corporate criminal liability namely the identification vicarious and the aggregate approach. It is not designed to displace or preclude the other theories but to supplement it. It is contended that it will be another way albeit more useful of attributing corporate liability. $nlike the other methods organisational fault has displaced individual fault as the basis of liability. #olding companies derivatively liable for the crimes of their employees is unfair to those companies which have made a good faith and reasonable effort to prevent such criminality. 55 It is unnecessary to lift the corporate veil and punish the director of the company if a crime is committed unless the directors of the company were actually aware of and sanction the commission of the crime. Instead we shall think of other reforms to make the directors of a company more fearful of the company committing a criminal offence. &ines for the directors dis!ualification or even (ail for directors if they countenance criminal behaviour are all possible methods to deter directors from engaging in criminal activities. 9astly the prevalent approaches should not be scraped as they can still play a formidable part in developing the law as and when need arises for they are better suited to certain types of offences.
9- Gobert, J., ) +*gnai, 7., @Coping /ith Corporate Criminalit(0 'ome lessons from Atal(B "#$$#% Criminal a/ Revie/, pg 9#1. 93 Gobert, J ) P*nch, +,. Rethin,ing Corporate Crime, "#$$-%, .*tter/orths0 e1is 2e1is, ondon, at pg &9. 9: Abid at pg 113. 99 Abid. ESSAY WORD COUNT- 4!" #or$s. %&'l&ograph(: %oo)s: Dobert @ < -unch M. =ethinking .orporate .rime G,;;0H Cutterworths2 9exis Fexis 9ondon. Driffin 6. .ompany 9aw 1 th edition G,;;5H -earson 9ongman2 9ondon #annigan C. .ompany 9aw G,;;0H 9exis Fexis2 Cutterworths 9ondon -into ' < >vans M. .orporate .riminal 9iability G,;;0H 6weet < Maxwell2 9ondon. 6imister '.-. < 6ullivan D.=. .riminal 9aw2 "heory < Doctrine G,;;0H , nd edition #art -ublishing2 /xford 4ells .. .orporations and .riminal =esponsibility , nd edition G,;;)H /xford $niversity -ress Art&*les: ..= < /ng %.". *' .omparative study of the &undamental elements of .hinese and >nglish .ompany 9aw+ G)::8H 18 International and .omparative 9aw Iuarterly pg :3. .larkson ..M.E *.orporate ManslaughterJ Ket more Dovernment -roposals+ .rim. 9.=. G,;;3H 6ep at pg 577. Dobert @. .orporate %illing at #ome and 'broad L =eflections on the Dovernment -roposals 9.I.=. G,;;,H ))8 @an Dobert @ < Mugnai >. *.oping with .orporate .riminality2 6ome lessons from Italy+ G,;;,H .riminal 9aw =eview pg 5)7 Dobert @. *.orporate .riminalityJ &our models of &ault+ G)::1H )1 9egal 6tudies pg 0:0 6lapper. *.orporate ManslaughterJ 'n >xamination of the determinants of -rosecutorial -olicy+ G)::0H 6ocial and 9egal 6tudies pg 1,0. Cases: 'D+s =eference GFo , of ):::H G,;;;H 0 'll >= )8, Director of -ublic -rosecution v %ent < 6ussex .ontractors 9td G):11H %C )15 9ennards .arrying .o 9td v 'siatic -etroleum .o 9td. G):)3H '. 7;3. Mousell Cros v 9ondon and Forthwestern =y G):)7H , %C 805. -earks Dunston and "ee 9td v 4ard G):;,H , %C ) -ioneer .oncrete G$%H 9td G)::3H ) C.9. 5)0 #9 = v - < / &erries GDoverH 9td. G)::)H :, .r. 'pp. =. 7, = v %ite G)::5H , .r. 'pp = ,:3 =e 6upply of =eady Mixed .oncrete GFo ,H Director Deneral of &air "rading v "rotman v Forth Korkshire .ounty .ouncil G)::8H >4.' .iv ),;8 "esco 6upermarkets 9td v Fattrass G):7,H '. )30. Statutes D9D6 G9egislative DecreeH of @une 8 ,;;) n.,0) GDecreto 9egislativo ?Disciplina della responsbilitM amministrativa delle persone giuridiche delle societM e delle associaAioni anche prive di personalitM giuridica?H. -ublished in DaAAetta $fficiale n.)1; of @une ): ,;;) Other $o*uments: #ealth and 6afety >xecutive 6tatistics. 'vailabe at www.hse.gov.$kNstatistics. $% 9aw .ommission -aper ,07 G)::5H *9egislating the .riminal .odeJ Involuntary Manslaughter+ $% #ome /ffice G,;;;H *=eforming the 9aw of Involutary ManslaughterJ "he Dovernment -roposals+