Can a company kill?

The UK government's proposed new offence of 'corporate killing' looks like a return to medieval law.

Jon Holbrook

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Six senior managers and two companies have been charged with gross negligence manslaughter and an offence under the Health and Safety at Work Act, over the Hatfield rail crash of October 2000 (1). This comes after the UK home secretary David Blunkett’s recent announcement of the government’s intention to tighten the law by creating a new offence of corporate killing.

There are plans to publish a draft Bill in autumn 2003. If enacted, this new offence will allow companies and other organisations to be convicted for causing death where the offence of manslaughter would have been difficult to prove. The convicted company could be fined, and their directors may be disqualified from holding a management role. Blunkett’s proposal was well-received by organisations such as the Institute of Directors, the Trades Union Congress and the Liberal Democrats (2).

There is a common perception that negligent companies have been getting away with industrial accidents for too long. Campaigners have drawn attention to high-profile accidents where lives have been lost but prosecutions for manslaughter have either failed or not been brought – such as the sinking of the Herald of Free Enterprise and the Kings Cross underground fire in 1987, and various rail crashes (3).

Now senior managers employed by Railtrack and Balfour Beatty are to be charged with manslaughter over the Hatfield crash, which killed four people. But it remains to be seen if the charges will succeed, as senior police sources reportedly admit that they and the Crime Prosecution Service (CPS) have been under political pressure ‘to take a scalp’ (4).

A Transport and General Workers Union report using the slogan ‘Corporate Killing – make it a crime’ captures something of the public sentiment. General Secretary Bill Morris begins with this emotional pitch: ‘Last year, some 300 people went to work and never returned home again – they were killed at work because of their employer’s negligence. Workers are daily burned, crushed or asphyxiated in fatal incidents which are the result of some failure by senior management…companies must be made to answer for such negligence.’ (5)

Companies can already be tried in civil courts for negligence, but English law has until now been reluctant to ascribe criminal responsibility for a death to a company. Although it is currently possible for a company to be prosecuted for manslaughter, a guilty verdict may only be returned when a person of sufficient seniority is also convicted for the offence. In these circumstances, the company’s fault is derived from a person who is effectively the embodiment of the company (invariably he or she will be a director, who is, in law, viewed as the company’s ‘controlling mind’). This identification principle, as it is known, recognises that ultimately only an individual can be held responsible for an offence as serious as manslaughter.

The proposed corporate killing law will dispense with the identification principle by allowing a company to be criminally responsible for death in its own right. This is not entirely new – a company may currently be convicted for offences under the Health and Safety at Work etc Act 1974 for failing to discharge health and safety duties (6). But these are regulatory offences, designed to criminalise dangerous workplace practices irrespective of the consequences of that practice. So a serious breach of this duty may result in a substantial fine even if nobody is actually harmed, whereas a minor breach of the duty should result in a less severe sentence even if somebody is harmed or even killed.

Corporate killing, however, will not be a regulatory offence. Its purpose is to criminalise a consequence (death), and criminal responsibility will be attributed for that death. But criminal responsibility for death will exist in the absence of any personal criminal responsibility.

Medieval judges developed the law of deodand, whereby an inanimate object that was the immediate cause of a person’s death (such as a cart or wagon) was forfeited to the King for pious purposes. This medieval law was abolished in 1846, but it seems that in the twenty-first century it is about to make a comeback – in the sense that a non-human thing (the abstract noun, ‘company’) is to be met with criminal sanctions.

The government even dispenses with the need for any personal fault at all. ‘A management failure’ in the company will be the basis for ascribing criminal responsibility (7). What degree of management failure is to attract criminal responsibility for killing a person under the new law? The fact that the government has described the new offence as ‘corporate manslaughter’ (8) suggests that the new law will require a degree of fault comparable to that required by the existing law of manslaughter, namely gross negligence.

But the term ‘manslaughter’ is misleading when applied to corporate killing. Manslaughter is accepted as being a form of homicide because the prosecution will usually have to prove that a person’s death was caused by gross negligence (9). The offence of corporate killing, however, will not require this degree of moral culpability.

In its draft Bill, the Law Commission referred to the required degree of fault as being a management failure that ‘constitutes conduct falling far below what can reasonably be expected of the corporation in the circumstances’ (10). This ‘far below what could reasonably be expected’ test differs from the gross negligence test in that its focus is an expectation rather than a reality of custom and practice.

In not requiring a gross negligence test future prosecutors will avoid the problem that they encountered when they brought manslaughter charges against P&O ferries after the sinking of the Herald of Free Enterprise. During that trial it emerged that P&O’s ferries were not alone in making cross-Channel sailings with open bow doors.

Executives of other companies testified that the risks of capsizing were not obvious to them, so it would have been difficult to satisfy a jury that the directors had been grossly negligent. But with a ‘could reasonably be expected’ test it would have been open to the prosecution to have overcome this evidence of custom and practice with evidence from safety experts, claiming that the company should have known that the practice was unsafe.

In 1925, the Court of Appeal set out the following test for the jury to apply when deciding if the defendant had been grossly negligent: ‘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 punishment.’ (11) This direction sets the test for gross negligence suitably high, requiring jurors to satisfy themselves that the defendant’s conduct deserves more than mere compensation and that criminal punishment is warranted. A direction to jurors to ask themselves if the company’s conduct fell ‘far below what could reasonably have been expected’ means that it will be possible for a company to be convicted in the absence of gross negligence.

The government is proposing a further diminution of criminal responsibility in the area of causation. Under existing manslaughter law it is open to a defendant to claim that his conduct was not the cause of death. For example, in the manslaughter prosecution of Great Western for the Southall rail crash of 1997, it would have been open to the company to have claimed that the cause of the deaths was the driver’s failure to observe the signals on the track.

The government is proposing that a company should be subject to conviction for corporate killing when its management failure can be regarded ‘as a cause of a person’s death notwithstanding that the immediate cause is the act or omission of an individual’ (12). By allowing a conviction where the management failure is a cause rather than the cause of death, companies may become criminally liable for the fault of others (13).

The prosecution with a corporate killing charge will also be helped by the fact that the jury will be considering the question of guilt where the accused is not a person – nobody will be standing in the dock and where nobody will be liable to go to prison. The accused will be a thing without feelings and without a face.

In summary: the government is proposing to create an offence of homicide where criminal guilt exists in the absence of personal criminal guilt, where the management’s errors may not amount to gross negligence and where the death may not have been the direct result of those errors.

In practical terms, consider this scenario. A school takes some teenagers to the countryside for a few days. They camp near a river at a site approved by the education authority and the teacher in charge tells the students not to play in or near the river. The following morning one child disobeys this instruction and instead of washing up as required goes to the river, slips in and drowns.

The teacher in charge, who would no doubt be distraught, has not acted in a criminally irresponsible way, and the immediate cause of death was not anything done by the teacher or his employing body; it was the child’s failure to obey instructions. But the education authority could be prosecuted for corporate killing on the grounds that its conduct fell far below what could reasonably have been expected (14).

The prosecution could claim that: camping near a river was inherently dangerous; the teachers in charge should have repeated each morning the instruction not to go near the water; there should have been more teachers on the trip; and the teachers should have been more vigilant. With corporate killing, it is conceivable that the education authority could, in these circumstances, be held criminally responsible for the child’s death.

The offence of corporate killing has been devised as a means of securing a conviction for a person’s death where the moral culpability for manslaughter does not exist. The notion of criminal responsibility is being degraded to such an extent the offence of corporate killing will be criminal in name only.

Jon Holbrook is a barrister (Jon.Holbrook@btinternet.com)

(1) Criminal charges over Hatfield crash, BBC News, 9 July 2003

(2) Firms face corporate killing law, Alan Travis, David Gow and Steven Morris, Guardian, 19 May 2003; TUC backs Blunkett’s commitment to legislate on corporate killing, Trades Union Congress, 20 May 2003; Blunkett confirms plan for corporate killing law, Matthew Tempest, Guardian, 20 May 2003

(3) It is thought that only four small firms and two directors have ever been convicted for the offence of manslaughter. See Blunkett confirms plan for corporate killing law, Matthew Tempest, Guardian, 20 May 2003

(4) Rail bosses face manslaughter charges, Angela Jameson, The Times, 4 July 2003

(5) Corporate Killing: Make it a Crime (.pdf 158 KB), Transport and General Workers’Union, June 2003

(6) It should be noted that the recent failed prosecutions of the present and previous Commissioner of the Metropolitan Police for breach of these duties, which were criticised by the judge as being a waste of £2.3 million, suggests that the prosecuting authorities are not lacking in zeal to enforce these duties. See ‘Police safety case a waste of £2.3m, says judge’, The Times, 28 June 2003

(7) Although the Bill has yet to be published the Government has indicated (see Reforming the Law on Involuntary Manslaughter: The Government’s Proposals, Home Office, 23 May 2000, para 3.2.5) that it will adopt most of the recommendations on corporate killing that were proposed by the Law Commission in 1996 (see Legislating the Criminal Code: Involuntary Manslaughter (.pdf 506 KB), Law Commission, 4 March 1996)

(8) The Government’s press release of 21 May 2003, for example, begins by saying ‘The Government will publish a draft bill on corporate manslaughter confirmed the Home Secretary David Blunkett today.’ Government to tighten laws on corporate killing, Home Office, 21 May 2003

(9) If ‘voluntary manslaughter’ (a killing that would be murder but for the existence of a defence such as diminished responsibility or provocation) and ‘constructive manslaughter’ (killing by an unlawful act likely to cause bodily harm) are excluded then the prosecution will always have to prove gross negligence. See Attorney General’s Reference (No 2 of 1999) [2000] QB 796

(10) Legislating the Criminal Code: Involuntary Manslaughter (.pdf 506 KB), Law Commission, 4 March 1996, Clause 1

(11) R v Bateman (1925) 19 Cr App R 8 @ pp11-12

(12) Legislating the Criminal Code: Involuntary Manslaughter (.pdf 506 KB), Law Commission, 4 March 1996, para 8.39

(13) As the Law Commission Report observes: ‘If a company chooses to organise its operations as if all its employees were paragons of efficiency and prudence, and they are not, the company is at fault; if an employee then displays human fallibility, and death results, the company cannot be permitted to deny responsibility for the death on the ground that the employee was to blame. The company’s fault lies in its failure to anticipate the foreseeable negligence of its employee, and any consequence of such negligence should therefore be treated as a consequence of the company’s fault.’ Legislating the Criminal Code: Involuntary Manslaughter (.pdf 506 KB), Law Commission, 4 March 1996, para 8.37

(14) Despite the tag ‘corporate killing’ the government is proposing that the offence should apply not just to companies or corporations but to ‘undertakings’ – a term that will embrace schools, hospital trusts, partnerships and unincorporated charities as well as private traders. The government estimates that 3.5 million enterprises will be covered by the new offence. Reforming the Law on Involuntary Manslaughter: The Government’s Proposals, Home Office, 23 May 2000, para 3.2.5

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